Adeyemi Candide-johnson V. Mrs. Esther Edigin (1990)

LawGlobal-Hub Lead Judgment Report

ACHIKE, J.C.A.

On 22nd December, 1987, at the Chief Magistrate Court No.8, Kano, presided over by Her Worship, Mrs. Esther A. Edigin, Ag. Chief Magistrate, Grade 2, Mr. Adeyemi Candide-Johnson appeared in that court as counsel to the accused in the case of Commissioner of Police v. Obong Etukurem, KA/70CB/87. Consequent to what transpired at the said court, Her Worship ordered the detention of Mr. Candide-Johnson for a couple of minutes at the cell. Having obtained prior leave of the Court by Ex parte Motion, Mr. Candide-Johnson, as applicant, moved the Federal High Court Kano by Motion on Notice for redress for the breach of his fundamental rights on the grounds set out in the copy of the Statement in support of the application. The amended Statement in its paragraph 4 contained the following reliefs:

“1. An order to remove the purported second proceedings of the 22nd day of December, 1987 for the purpose of the said proceedings and the purported order of commitment (sic) and all such other orders affecting the liberty of the applicant, being quashed.

2. An order that the respondent make full apology in writing to the applicant.
3. Damages for deprivation of liberty.”

The application was supported by an affidavit and exhibits used in the motion ex parte as well as a further affidavit to which was attached a certified record of the proceedings, Exhibit ACJ “A” The application was opposed by an eighteen paragraph counter-affidavit deposed to by Her Worship, hereinafter referred to as the respondent, which was supported by yet another affidavit deposed to by one Idris Abubakar, the clerk of Court to the Chief Magistrate’s Court No.8, Kano.

After due consideration of affidavit evidence of the parties including submissions of counsel, Kolo, J., of the Federal High Court, Kano Division dismissed the application in its entirety in a Ruling handed down on 3rd May, 1988. It is against this ruling that the applicant, hereinafter referred to as appellant, has appealed to this court having filed four grounds of appeal.

Parties duly filed and exchanged briefs of argument. At the hearing before us, Mr. J. B. Majiyagbe, S.A.N., appearing with D. I. Daneji, Esq., adopted appellant’s brief and adumbrated briefly. The learned Senior Advocate first drew attention to pages 62 and 63 of the record of proceedings which were originally omitted but subsequently added as forming part of the record of proceedings. Furthermore, learned counsel drew attention to the concession made at page 38 of the record of proceedings on behalf of the respondent by her counsel. Specifically, at page 38, lines 9 to 12, counsel stated:

“I shall finally urge the court to dismiss this application in so far as it relates to grounds 4(2) & 4(3) while we concede to grounds (4(1) that that part of the record be quashed accordingly as it relates to the detention.”

Mr. A. B. Mamoud, learned Ag. Director of Civil Litigations, appearing with Tijani Yahaya, ADCL, for the respondent, adopted respondent’s brief and also made a brief further oral submission. Learned counsel stressed that there was no conviction of appellant by the respondent but rather he was detained as a result of the altercation. He further submitted that “if appellant was not insisting on apology and damages (i.e. reliefs 4(2) and 4(3) he had no objection to the matter being quashed.”

He finally referred to respondent’s brief at page 1 which, according to him, indicated the only questions for determination in this appeal.

The learned Senior Advocate in reply submitted that section 315 of the C.P.C. did not apply to the case in hand and cited Agbegende v. Ilorin Native Authority (1968) N.M.L.R. 144 and Richardson on the Annotated Notes on the Penal Code in support of his contention. Learned counsel further submitted that the respondent (Magistrate) had signed off the sitting of the day before the altercation between her and the appellant ensued – refers to page 62 of the record – and cites Prophet Malim Sheriff Kafola v. Commissioner of Police (1973) 9 – 11 S.C. 110 in support.

Mr. Mahmoud interpolated by referring to section 91 of the Kano State Magistrate’s Court Edict 1986, No.8 of 1987 as affording ample immunity to the respondent and also cites Egbe v. Adefarasin (1985) 1 N.W.L.R. (Pt.3) 549, particularly the lead judgment of Karibi-Whyte, J.S.C., wherein it is shown that there is no difference today between the immunity enjoyed by the Magistrate and a Judge of the High Court. Counsel concluded by referring to section 115 of the High Court Law of Kano State which protects Judges of the superior court as being in pari materia to section 91 of the Kano State Magistrate. Court Edict and urged us to dismiss the appeal.

Mr. Majiyagbe finally concluded by referring to pages 18 to 21 of appellant’s brief and said that it adequately answered the submission of Mr. Mahmoud, placing reliance on Ransome- Kuti v. A.G. of Federation (1985) 2 N.W.L.R. (Pt.6) 211, and accordingly urged that the appeal be allowed.

Both parties in their briefs respectively set out three and five issues for determination. With due respect to learned counsel, but in order to promote greater degree of clarity, I shall examine this appeal under four issues:

1. Whether the conduct of the appellant in the proceedings in the case before the learned trial Magistrate (the respondent) was contemptuous.
2. Whether the act or order of the respondent was protected under any law.
3. Whether having regard to the evidence before the trial Judge his findings were perverse or supportable.
4. Whether the rights enshrined under chapter IV of the 1979 Constitution were available to the appellant.

It is proposed to deal with these issues in the above order.

The first issue is whether the appellant’s conduct during the proceedings in the criminal case he was engaged as counsel to the accused was contemptuous of the respondent who presided over the said case. It is not always that the courts engage themselves in the difficult, often fruitless exercise of formulating a satisfactory definition of a subject-matter under reference. Nevertheless, it is useful to have at the back of one’s mind the nature and scope of a subject-matter called for consideration. Contempt of court may be described as any act or conduct which interferes with the course of justice and tends to bring the authority and administration of law into disrespect. The twin elements of contempt of court are, therefore, interference and disrespect. The aim of the law of contempt of court, therefore, is to protect the dignity of court from any conduct that tends to obstruct or interfere with the administration of justice. The case of Morris and Ors. v. Crown Office (1970) 2 Q.B. 114 is interestingly illustrative. A group of University of Aberystwyth Welsh undergraduates, protesting over an order of a court made against one of their leaders, stormed into well of the court while in session, shouted slogans, chanting songs, scattered pamphlets and flocked into the public gallery. They disturbed the Court in its business. They were convicted and sentenced to three months imprisonment and E50 fine each. Their appeal against their conviction and sentence was dismissed, though the sentence was varied by binding them over to be of good behaviour for twelve months. It is also useful to recall the case of Re Jordon, (1888) L.J.Q.B. 483. Here a Solicitor interrupted a Judge who was reading his judgment by shouting “That is a most unjust remark.” He was convicted, and rightly in my view, for contempt of court.

We shall now turn to the record of proceedings in the case in hand and see what transpired on that ill-fated day. The drama can be re-captured by looking at the event on 22nd December, 1987, either at pages 26 to 27 or pages 62 to 63 of the record, the later reference being slightly more comprehensive. For ease of reference, it is reproduced hereunder in full.

“IN THE MAGISTRATE’S COURT OF KANO STATE OF NIGERIA: IN THE MAGISTRATE’S COURT OF KANO JUDICIAL DIVISION: HOLDEN AT KANO

SUIT NO. KA/70C8/87

BETWEEN:

COMMISSIONER OF POLICE V. ORONG ETUKEREM

22nd-12-87 Accused present.

Inspector Ememo for prosecution.

C.R. Johnson for the accused.

Johnson – This is a motion that is brought in pursuance to section 33(1) of the Constitution and apparent inherent jurisdiction of this court to dismiss the charge and discharge the accused. It is supported by an eight paragraph affidavit and I rely on all paragraphs. See Sogekun and Akinyemi 1980 5 -7 S.C. Pg 1 at 18. Allen v. McAlpine & Sons Ltd. (1968) 2 Q.B. 229 at 259. See Street Field Committee report cost it on delays in criminal trials. See Tofi v. U.B.A. (1987) 3 Nigerian Weekly Law Reports (Pt.62) p.707. It is with respect that I submit that if the court decides that 4 years is an unreasonable time for the accused to still be standing trial then the court should dismiss the case.

Court: Case adjourned 21/1/88 for ruling.

Mrs. E.A. Edigin

Ag. Chief Magistrate

Grade 2,

22/12/87.

22/12/87: Court to Mr. Johnson: I would like to remind you that when next you make submission in courts, you make them with the utmost respect and to the court.

Mr. Johnson: The court is obliged to record everything I say.

Court: I record only what is reasonable to me as the law requires.

I do not record nonsense. It’s a bloody waste of time and please keep quiet when I am talking.

Mr. Johnson: The court should listen to me first.

Court: Please do not argue with me and stop being rude.

Mr. Johnson: We are not in a competition here.

Court: As a Judge – I sit over your cases and you should give me that respect.

Court: When did you leave the Law School?

Mr. Johnson: I will refuse to answer that question in the rudest manner.

Court: repeats the question time and time over again.

Mr. Johnson: I will not answer the question.

Court: You are being rude and committing contempt and you know it and I have no alternative. If you intend to disgrace the court as a lawyer I will have no alternative than to hold you for contempt. I hereby order that you be detained.

After ten minutes. Miss Olaniyan and 2 other lawyers on behalf of Mr. Johnson -we are very sorry for Mr. Johnson’s behaviour.

Court: to Mr. Johnson – It is not my desire to put people in the cell anyhow but when you push me to the wall by being very disrespectful, I have no alternative. All I can tell you now is that your behaviour in the court amounted to utmost disrespect but I will temper justice with mercy and warn that no matter any court in which you appear, you are bound to show first and foremost absolute respect. You are a lawyer and your first duty is to the court. Please behave and be respectful next time. You are free to go.

Mrs. E. A. Edigin,

Ag. Chief Magistrate

Grade 2,

Kano.

22/12/87.”

The first half of page 62 will hereafter be simply referred to as Part 1 whilst the remaining part of that page to the end of page 63 may be referred to as Part 2. First to Part 1. This Part is characterised by two glaring distinct observations of features: first the respectful counsel’s submission for dismissal of the case against the accused for want of diligent prosecution, and second, the adjournment of the case for ruling to 21st January, 1988 with the signing off, dated 22nd December, 1987 by Mrs. E.A. Edigin, the Ag. Chief Magistrate Grade 2. In my humble view, the respondent (the Ag. Chief Magistrate) had on the said day, by the prescribed adjectival law completely disposed of the case in which the appellant was appearing as counsel. Reading the content of Part 1 very closely and dispassionately, I am of the considered view that nothing could be said of any act of disrespect on the part of the appellant, that he directly or indirectly interfered with or tended to interfere with the courts business in the case in which he appeared as counsel relative to the time the respondent signed off the record. Indeed the affidavit evidence placed before the lower court did not establish anything to the contrary. On behalf of the appellant it was submitted that his conduct was lawful at all material times and this of course encompasses the period of Part 1. No impute was made on behalf of the respondent relative to the question of contempt during Part 1 stage because the submission of learned respondent’s counsel in the written brief (see pages 3 and 4) was focused on the event of appellant’s conduct in refusal to answer questions put to him by the respondent, a matter to which I shall return presently. Turning to the respondent, the record of proceedings, earlier reproduced, did not contain any exhibition of misconduct during the course of appellant’s submission in respect of the case he was appearing as counsel. But very strangely and in contradiction to the official record of proceedings prepared by her, the respondent specifically deposed in paragraph 16 of the counter-affidavit as follows:-

“The applicant was not put on trial for his attitude towards the court neither was he convicted for such an attitude. The applicant was detained to enable the court attend to other cases which could not go on because of the noises being made by the applicant and also his attitude of belittling the court.”

The stance of the respondent as well as the account contained in the record of proceedings was seriously confounded by the counter-affidavit of Idris Abubakar, clerk of court to the respondent. In paragraph 5 he deposed.

“That in the course of moving the motion the lawyer (i.e. the appellant) made (i.e. the respondent) to caution him up to three times.

With practically nothing to commend the contradictory affidavit evidence of the respondent and that of Idris Abubakar which was offered in support of the respondent’s, and guided by the record of proceedings, I am of the firm view that there was nothing to show any contemptuous or disrespectful interference by the appellant in the course of the proceedings of the court throughout the stage he was moving the motion.

Of course, this could have been the end of the respondent’s consideration of the case, Suit No. KA/70/C8/87 on 22nd December, 1987, having, as earlier noted, signed off and dated her record. But this was not to be Guided by the record, it is clear that the respondent suo motu confronted the appellant to some dialogue wherein she pontificated to him regarding his future submissions in courts. That pontification heralded the beginning of Part 2 of the drama, and had earlier been reproduced in this judgment: it starts from immediately after the first signing off by the respondent at page 62 to the second signing off at page 63. In my humble view, the event recorded above seems to me to be extra-judicial in the sense that it cannot be said, in all honesty, that it either formed part of the proceedings of the application made by the appellant on behalf of his client, the accused or part of a new matter in which appellant had any interest because the Ruling in connection with appellant’s client had, as earlier stated, been adjourned to 22nd January, 1988. Some glaring observations about the content of Part 2 are that they are disjoined and rather tendentious. Its disjointed nature coupled with the affidavit evidence of the respondent, which was disturbingly in conflict with that of Idris Abubakar and the record of proceedings, leaves one with the profound feeling that it was a make-up – a mere after thought proffered to fill up the missing portion of Part I in order to justify the act of the respondent. Unfortunately, this anomalous feature of the record did not attract the attention of the lower court which was deeply enmeshed in the scope and content of judicial immunity available to the respondent both under the statute and the case law. I think that Part 2 – a makeshift recordation – should be safely ignored, moreso as it was completely extraneous to the matter the learned respondent was invited to consider in the application moved by the appellant.

Even if one does not ignore Part 2 as a belated supplementation of part 1, one is still left with the fact that the incident re-captured by the content of Part 2 remained extra-judicial. It is extra-judicial because the respondent having adjourned and signed off the matter for which the appellant appeared as counsel, the judicial proceedings in relation to that case became terminated. Now, suppose the respondent at that stage tried to exchange pleasantries with the appellant – it being only three days to Christmas Day and the appellant, not being interested, ungraciously walked out on the respondent. Again, suppose appellant’s assignment in court having terminated in such circumstances described above, and as he was about to leave the court the respondent requested him to take a letter and deliver same to X – a deplorable sad, but common experience in our lower and higher courts but the appellant was uncompromisingly unobliging. Could either of such situations be said to have occurred in the discharge of the respondent’s judicial duty? Secondly, could the respondent in either case regard the situation as contemptuous and proceed to deal with the appellant for his recalcitrancy? My answer to each question is unhesitantly in the negative. This is because each circumstance was first, extra-judicial and second, not contemptuous. If the situation was extra-judicial then its legal implications may now be considered. In my humble view, it was the respondent that triggered off the vituperative altercation with the appellant when she said, inter alia;

“I do not record nonsense. It’s a bloody waste of time and please keep quiet when I am talking.” (emphasis supplied).

Apparently, when tempers rose rather meteorically, the respondent, exacerbated by the situation, unleashed this incisive question:

“When did you leave the law school?

The response, going by the record, was equally unrelenting:

“I will refuse to answer that question in the rudest manner.”

It was the refusal to answer this question, according to the record, that broke the camel’s back, and led to the detention of the appellant for contempt of court. It was unfortunate, to say the least, for the respondent, according to the records, to have taken leave of her exalted bench, invited counsel to extra-judicial dialogue and thereafter descended into the arena of vituperative conflict with him. Is the situation narrated above reasonably defensible or covered by judicial immunity?

It is perhaps useful to bear in mind that the alleged contempt was criminal in nature. And. as earlier noted, it was appellant’s refusal to answer the question as to the time that he left the Nigerian Law School that imperiled his liberty as a citizen. Although in paragraph 16 of respondent’s counter-affidavit (already reproduced in this judgment) the respondent denied that the appellant was on trial, one would observe that the right to keep silent even when arraigned for a criminal offence remains inviolate. The citizen’s right to remain silent has for long been firmly recognised and established under the common law. In Rice v. Connolly (1966) 2 All E.R. 649 at p.652, the Lord Chief Justice opined:

“The whole basis of the common law is the right of the individual to refuse to answer questions put to him by persons in authority and refuse to accompany those in authority to any particular place short of course of arrest.”

Today, this right has been expressly preserved under Section 33(11) of the Constitution of the Federal Republic of Nigeria 1979. If, therefore, the appellant was not on trial and an irrelevant question was put to him, even by a judicial authority, it would seem to me that the necessity or obligation to answer such question cannot arise. It is trite that relevancy of facts is of paramount importance in our adjectival law. That paramountcy has been given conspicuous expression in Part II, Sections 3, 6 to 13 and 15 to 18 of the Evidence Act.

A court has a duty to disallow a question which is not relevant to the proceedings; but a question which is relevant can freely be put to a witness and must be answered, although the weight to be attached to the answer is an entirely different matter. Thus relevance and admissibility are closely knit together while the question of weight appertains to the province of evaluation and should, as always, be kept in separate compartment. Now it, may well be asked, was the question when the appellant left the Nigerian Law School relevant and necessary to the proper determination of the motion earlier moved by the appellant and adjourned to a date for ruling? The answer must obviously be in the negative.

It would be recalled that the learned Judge of the lower court had in the course of his judgment said that the test whether an act is contemptuous or not is subjective and not objective because, he argued, “that the fact that of the Judge will treat such an issue (that is, of contempt) differently from another may not necessarily mean that one or the other is wrong in treating the issue the way he did.” One would note that the court’s power to punish for contempt is as old as the courts themselves. In the celebrated case of Atake v. The President of the Federal Republic of Nigeria (1982) 11 S.C. 153, the Supreme Court, per Idigbe, J.S.C., had decided that the power of the court to punish for contempt is inherent and indeed preserved under Sections 6 and 36(3)(a) of the 1979 Constitution. It is undoubtedly a sine qua non to the smooth and proper administration of justice and ought to be preserved. It belongs to the realm of discretionary powers of the court. But the courts have recognised its uniqueness and have cautioned that the power to punish for contempt should be invoked sparingly. Lord Justice Stephenson had in Balogh v. St. Albans Crown Courts Q.B.D. 73 warned that:

“It (the power) must never be invoked unless the ends of justice demand such drastic means. It appears to be rough justice, it is contrary to natural justice, and it can only be justified if nothing else will do…”

Clearly, it seems to me that the discretionary power of the court to punish for contempt is reviewable. Any reviewing authority is undoubtedly invited to make an objective assessment of a matter under consideration. To, therefore, hold as the lower court did, that the test regarding the power of the court to punish for contempt is subjective, is with respect, unacceptable.

From the foregoing, I am unable to hold that the extra-judicial vituperative exchanges between the appellant and the respondent in the peculiar circumstances of this case amounted to contempt of court. On the contrary I think that the invocation of the power of contempt in the instant case bordered on abuse of judicial authority. It is clearly improper and will expose the administration of justice to ridicule if a magistrate or a presiding officer of an inferior court were invested with such extraordinary powers to provoke unnecessary extra-judicial verbal exchanges with counsel or a member of the public and yet invoke against him the lethal and drastic power to punish for contempt. Condemning such untrammeled abuse of judicial authority in Ikonne v. CO.P. & Justice Nna Nna Nwachukwu (1986) 4 N.W.L.R. (Part 36) 473, at 495 Aniagolu, J.S.C., had this to say:

“It is unthinkable that a Judge of the High Court to whom the law looks up for the protection of the fundamental rights of the people should be the one to trample on those rights.”

In the result I resolve Issue No.1 in favour of the appellant.

The second Issue focuses on the scope of immunity enjoyed by the inferior court, that is, the respondent, having regard to the detention order imposed on the appellant. The order by the respondent for the detention and actual detention of the appellant are facts agreed upon by both sides. It was further conceded by the respondent in paragraph 16 of her counter-affidavit, as earlier noted, that the appellant was not tried nor was he convicted but was detained in order to stop the noise from the latter. It has been strongly submitted on behalf of the appellant that the act or order of the respondent was not covered by any immunity prescribed under the law. Furthermore, it was submitted that the authority of Egbe v. Adefarasin (1985) 1 N.W.L.R. (Pt.3) 549, heavily relied on by the lower court, was inapplicable or distinguishable from the circumstances of the present case. First, the ratio in Egbe’s case is limited to the immunity of Judges of superior courts of record whereas the case in hand relates to a magistrate court, an inferior court of record. Second, Section 88(1) of the Lagos State High Court Law which fell for determination in Egbe’s case, dealing with immunity for “judicial act”, and construed in the light of the common law rules on the question of contempt, tended to reject the discrimination between the immunity of inferior and superior courts. The sameness of immunity of both inferior and superior courts, relying on Egbe’s case, was urged by learned counsel for the respondent as the correct state of the law today in Kano State, and, indeed, throughout Nigeria. Learned counsel also submitted that Section 88(1) of Lagos State High Court Law (relied on in Egbe’s case) was similar to the provisions of Section 91(1) of the Kano State Magistrates Court Edict 1987 and it gave full immunity to inferior courts and accordingly urged that the detention order made by the respondent was immune.

It is necessary to have a closer look at both Section 88(1) of the Lagos State High Court Law and Section 91 of the Kano State Magistrate Court Edict 1987. First Section 88(1). It provides that

“No Judge shall be liable for any act done by him or ordered by him to be done in the discharge of his judicial duty, whether or not within the limits of his jurisdiction, provided that he at the time, in good faith, believed himself to have jurisdiction to do or order to be done the act in question.”

Section 91(1) on the other hand states that:

“No magistrate or justice of the peace shall be liable for any act done by him or ordered by him to be done in the discharge of his judicial duty, whether or not the act was within the limits of his jurisdiction, provided that he, at that time and in good faith, believed himself to have jurisdiction to do or order to be done the act in question.”

I am in full agreement with the submission of respondent’s counsel that the provisions of Sections 88(1) and 91(1) are identical and virtually word for word, save that while the former relates to Judges of the High Court the latter provided for immunity of presiding officers of the inferior courts. The effect is far-reaching because both provisions have shown that the common law distinction regarding the immunity between judicial acts of superior and inferior courts is no longer tenable. It seems quite clear that in order to sustain the immunity of a Judge or a magistrate, under either of the two statutory provisions, the offending act must be shown to have been done in good faith. The complaint in the instant case is not whether or not the respondent acted within the limits of his jurisdiction as much as whether or not the act of the respondent was done in the discharge of his judicial duty. It would be recalled that I had already held that the act of the respondent was extra-judicial. It seems patently clear that the respondent, with respect, was using the sledge-hammer of contempt as a subterfuge to visit the appellant for his style of advocacy which was unacceptable to her. This lucidly demonstrates the bad faith with which the respondent reacted to the conduct of the appellant in the adjourned case where the latter appeared as counsel to the accused. In that premise, it is my considered view that the extra-judicial act of the respondent, which was not done in good faith, is legally indefensible and cannot be protected under Section 91(1).

The entire circumstances and facts of Egbe’s case except in so far as that case considered the issue of judicial immunity, were different from those of the present case. Similarly, the authorities of Tayo Odusete & anor. v. Senior Magistrate Ayenibiowo (1985) 6 N.C.L.R. 778 and Ransome-Kuti & Ors. v. A.G. of Federation & Ors. (1985) 2 N.W.L.R. (Pt.6) 211- the latter dealing with state immunity rather than judicial immunity – are also different and unhelpful.

Accordingly, I would also turn in an answer in the negative with regard to Issue No.2.

The complaint raised under the third issue is that the learned trial Judge failed to properly evaluate the evidence placed before him. The evidence before the trial Judge was primarily affidavit evidence to which were attached certain annexures. I had earlier considered the record of proceedings credited to the respondent in two parts. I had also shown and would reiterate, with all apologies for being repetitive, that the affidavit evidence of the respondent, the record of proceedings and the sworn statement of one Idris Abubakar, clerk of court to the respondent were radically in conflict particularly with regard to the alleged rude remarks of the appellant that sparked off the detention of the latter (see part 2 of he record, already reproduced in this judgment, paragraph 10, and 14 of respondent’s affidavit and paragraphs 5, 6, 7, 8, 9, 10 and 11 of Idris Abubakar’s affidavit). Nowhere in his ruling could one discern an attempt to resolve these crucial areas of conflict. The learned trial Judge, from the affidavit evidence before him, concluded that the respondent diligently recorded all appellant’s submissions and that “the applicant’s (that is, appellant’s) behaviour bordered on youthful exuberance and unwarranted …. I am inclined to believe the respondent in the light of the applicant’s failure to categorise a particular submission not recorded by the respondent.” With due respect to the learned trial Judge, while I can easily see the recordation of authorities cited by the appellant, I am however unable to discover the submission or argument for which the legal authorities were cited in support. This again cast aspersion on the quality of the record kept by the respondent as complained by the appellants. The need to keep proper record of proceedings cannot be over emphasised. Indeed, Section 43(1)(a) and (b) of Kano State Magistrates’ court Edict 1986 No.8 of 1987 enjoins the court to record in writing any question of law or equity raised at the hearing and any legal submission made together with any authorities cited in support of the same. The Supreme Court in Otapo v. Sunmonu (1987) 2 N.W.L.R. (Part 58) 587, per Belgore, J.S.C., at p.624, has stressed the importance of proper recording of proceedings:

“It is in the interest of justice that all that is said or raised in court during hearing be taken down in writing that is, be properly recorded. When this is not done and it is through the affidavit of parties that the true records could be known, questions will usually be asked why the court adopted such a procedure.”

Finally, by Rule 3 of the Rules of Professional Conduct of the Legal Profession made by the General Council of the Nigerian Bar in 1967 (vide Government Notice No. 1977 Official Gazette no. 107 Vol. 54 of December 14, 1967) a legal practitioner should not only courageously prosecute his client’s case but

“…should vigorously present all proper arguments against any ruling he deems erroneous and should see to it that a complete and accurate case record is made. In this regard he should not be deterred by any fear of judicial displeasure or even punishment.”

If, despite the persistent insistence by the appellant that his submissions be properly recorded and this was not in fact done, as the record clearly shows, then with respect, the learned trial Judge’s holding and castigation that the appellant’s “behaviour bordered on youthful exuberance and unwarranted” to say the least, were unfortunate. The findings by the lower court, in this regard, were unquestionably not borne out by the affidavit evidence before the court, they were perverse.

The learned trial Judge in making his findings and conclusions failed to advert to the principle so ably enunciated in Mogaji v. Odofin (1978) 4 S.C. 91 and revised in other modern celebrated decisions such as Woluchem v. Gudi (1981) 5 S.C. 291, Ebba v. Ogodo (1984) 4 S.C. 84 and Jude Ezeoke v. Moses Nwagbo (1988) 1 N.W.L.R. (Pt.72) 616 at 627. Had his Lordship properly adverted to and evaluated the evidence before him he would have resolved the material issues in controversy in favour of the appellant.

The result is that I again resolve Issue No.3 in appellant’s favour. The fourth and last issue in this appeal is whether the rights enshrined under Chapter IV of the 1979 Constitution are available to the appellant. We have in the course of this judgment established that the conduct of the appellant was not contemptuous and yet without trial or conviction and without powers – statutory or otherwise – the respondent unjustifiably caused the detention of the appellant under circumstances which were extrajudicial. The contention of the appellant in relation to the first relief sought for the removal from the High Court for quashing the second purported proceedings of the 22nd December, 1987 and the order of committal and detention of the appellant has been satisfactorily made out, all the issues canvassed in the appeal under the four grounds of appeal having been resolved in appellant’s favour.

In his second and third reliefs the appellant respectively sought an order of public and written apology from the respondent and damages for deprivation of liberty. I shall deal with the two reliefs in the reverse order that is, starting with claim for damages. In the instant case, it was the appellant’s right to freedom of movement that was infringed, contrary to the provisions of section 38(1) of the 1979 Constitution. In his application for redress the appellant chose a procedure expressly provided under section 42 of the 1979 Constitution. This peculiar feature of the instant case makes it demonstrably distinguishable from the decision of Ransome-Kuti v. A.G. of Federation & Ors. (1985) 2 N.W.L.R. (Part 6) 211 which was a case founded on tort and decided against the plaintiff in that case on the ground of state immunity that no legal action could be taken against the state in its own court for the tortuous acts of its servants, rather its servants were to be personally liable. There is nothing under the provisions of Chapter IV of the 1979 Constitution that precludes a claim of monetary compensation to an applicant such as the appellant herein for violation of his fundamental right. Unless where special damages are claimed, which is not the position in the case in hand, the award is usually one in general damages.

What should be the proper approach to the award of damages in the instant case? There appears to be some measure of consensus that the appellant was detained in the cell for about 10 minutes. Be it noted that this was neither in the usual Police cell at a Police Station nor was the appellant detained at the regular Federal prisons. I also bear in mind the candour of Mr. J .B. Majiyagbe, the learned Senior Advocate for the appellant that his client was more enthusiastic on quashing the vexed proceedings and to a lesser degree the apology, and least of all the question of damages. This is perfectly understandable because, as may be gathered from the record of proceedings and the briefs of the parties, the appellant is a legal practitioner in the legal firm of “J. B. Majiyagbe & Co.” The reputation of the appellant and that of his firm which is headed by a Senior Advocate of Nigeria had been under fire. It is that reputation that calls for protection. This cannot be achieved, in my humble view, by compensatory damages, not even aggravated or exemplary damages. Taking all these into consideration, I think the ends of justice in this case would be met if the court declines to award damages.

The second relief seeks an order for a written apology. An apology in the real sense of the word is a subsidiary act, whether verbally or in writing, done in mitigation of monetary compensation. Having gone so far to decline making an award of damages I would also, in the circumstances of this case, refuse the subsidiary relief for apology.

In the result, this appeal succeeds; the same is allowed. The ruling of the learned trial Judge is hereby set side. I enter judgment in favour of the appellant and hereby remove and quash the second purported proceedings of the 22nd December, 1987 and the order of committal and detention of the appellant.

I assess and fix costs at N350 in favour of the appellant.

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Other Citations: (1990)LCN/0101(CA)

Ekwealor Ifekwu & Anor V. Chuba Mgbako & Ors (1989)

LawGlobal-Hub Lead Judgment Report

SAMSON ODEMWINGIE UWAIFO, J.C.A.

The appellants were convicted for contempt of court on 9th September, 1985 and sentenced to a term of 3 months’ imprisonment each by C. Olike J., sitting at the Onitsha High Court. They were alleged to have flouted an interim injunction of the court made on 16th June, 1983 restraining the plaintiff, his servants and agents from building or continuing to build on the land which was the subject-matter of dispute in suit No. O/61/76. The plaintiff in that case, now the 1st appellant, brought an action in a representative capacity against the defendants claiming for (a) a declaration of title to the said land which is a portion of land known as AMA ANI OKPU and specifically delineated in a survey plan; (b) N600.00 damages for trespass; and (c) injunction. The 2nd appellant is a member of the interest group represented by the 1st appellant, namely, Umuokpalaora family of Isinyi Village, Nando.

Curiously enough it was the defendants, now respondents, who never counterclaimed that sought and were granted an interim injunction against the said plaintiff. I cannot resist saying in passing that it was quite irregular and wrong as the injunction was not based on any interest or right claimed by the defendants. In other words, they had no right to an interim injunction in the first place. This point was decided recently by this Court in Okechukwu v. Okechukwu (1989) 3 N.W.L.R. (Pt.108) 234. However, that circumstance has no bearing on the merit of this appeal. I have merely drawn attention to an unfortunate use made of interim injunction.

The real issue for consideration in this appeal is whether the appellants were properly convicted for contempt. The appellants complain, among other things, that they were convicted on insufficient evidence. First, they say that the facts deposed to in the affidavit evidence of the respondents were denied by the appellants and no oral or further evidence was available upon which the court could find the appellants guilty. Second and this is an extension of the first, that the land upon which the appellants were alleged to have built after the injunction was granted was said by them to be different from the land in dispute but that the trial judge did not ascertain the validity of that defence before he proceeded to convict.

On the first point, the learned judge relied entirely on conflicting affidavit evidence. In a matter like this he was bound to call oral evidence to resolve the conflict. This he failed to do. Even in civil matters where there is conflict in the affidavit evidence, the court will ordinarily want to be satisfied by oral evidence as to where the truth lies: see Akinseti v. Akindutire (1966) 1 All N.L.R. 147 at 148; Eboh v. Oki (1974) 1 S.C. 179 at 189-190; Akintemi v. Onwumechili (1985) 1 N.W.L.R. (Pt.1) 68 at 73. It is the law that the duty on the Court to call for oral evidence in appropriate cases is not diminished by the failure of the parties to the application to specifically request to lead evidence on oath: see Falobi v. Falobi (1976) 9 & 10 S.C. 1 at 15.

The second point mentioned above was not appreciated by the trial judge even when his attention was drawn to a vital aspect thereof. He said inter alia:
Mr. Okonkwo learned counsel for the respondents submitted that the building is not on the land in dispute and referred to (a plan) Exh. A attached to the counter-affidavit to show that the area in dispute is distinct from the location of the building; that the respondents have no intention to disobey the court…
The respondents in the instant case have not shown that the order of the court was made in error. Their argument as to the location of the building and the land in dispute was canvassed before the order of interim injunction was made. It is late now to reopen it in the present application for committal against them.”

There is a serious error here. The appellants may have previously canvassed that issue as to the location of the building in relation to the land in dispute and been overruled in the civil motion for injunction. But now in the criminal motion for committal they were entitled to raise it again as their defence and to be heard on it. There are three reasons for this: (i) The standard of proof in civil matters is different from that in criminal matters – the former being on the balance of probabilities and the latter beyond reasonable doubt. (ii) Once an accused person denies an allegation or pleads not guilty he puts every material fact in issue and the onus is on his accuser to prove such fact. (iii) The defence of an accused person must be considered no matter how stupid.
A contempt of court is an offence of a criminal character. A man may be sent to prison for it. The offence must therefore be satisfactorily proved, that is, proved beyond reasonable doubt: see In re Bramblevale Ltd. (1970) Ch. 128 per Lord Denning M.R.; Aneke v. Ede (1989) 1 N.W.L.R. (Pt.100) 738. Proof beyond reasonable doubt cannot be achieved on unresolved conflicting affidavit evidence and when a defence put forward by an accused is not considered. A conviction based on such slipshod approach cannot be allowed to stand.

Learned counsel for the respondents later appeared in this court and announced that he could not support the conviction even though the respondents had earlier filed their brief of argument. The reason for this change of attitude was that it had been discovered that the land on which the building in question was built was different from that in dispute. This was exactly the defence of the appellants which the trial judge failed to consider.

In the circumstances the appeal is allowed. The conviction and sentence which the lower court passed on each of the appellants are accordingly set aside. Each of the appellants is acquitted and discharged.

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Other Citations: (1989)LCN/0100(CA)

Tajudeen Ola Oladipo V. George O. Oyelami & Anor (1989)

LawGlobal-Hub Lead Judgment Report

IDRIS LEGBO KUTIGI, J.C.A.

The petitioner, now appellant, filed an Election Petition in the High Court, Ibadan challenging the election of the 1st respondent as the Chairman of Oluyole Local Government in the Local Government elections held nation- wide on 12th December, 1987. Eight candidates contested the chairmanship election. The 1st respondent was declared as duly elected having scored 7,930 votes. The appellant came second with 7,005 votes. In the petition the appellant prayed that it be determined that –

“1. George O. Oyelami (1st respondent) cannot hold any elective office for life.

2. The election of George O. Oyelami is null and void and of no effect.
3. An order restraining George O. Oyelami from holding and or performing any duty as the chairman for Oluyole Local Government; and
4. An order that the petitioner (appellant) be declared duly elected as the Chairman for Oluyole Local Government.”

Among the several grounds stated for filing the petition are those contained in para. 3(i)-(x) as follows.

“3. And your petitioner states that:-

(i) The petitioner was the sixth chairmanship candidate while the first respondent was the Eight Chairmanship contestant.

(ii) The said First respondent was the chairman for Oluyole Central Local Government between 1981 and 1983.

(iii) While the First respondent was the Chairman of Oluyole Central Local Government, he got the sum of N11,500 as Contingency Fund.

(iv) The First respondent used the said amount in a manner other than the purposes it was intended.

(v) The First respondent was arrested in 1984 for corrupt enrichment by the Special Investigation Panel.

(vi) Special Investigation Panel Investigated the case.

(vii) The First respondent was indicted by the Special Investigation Panel for conspiracy with Chief Bisi Akande and Chief Bola Ige. The Special Investigation Panel Report dated 19/2/87 will be relied upon at the trial.

(viii) The First respondent was asked to refund N5,500.

(ix) The Special Investigation Panel is one of the Bodies charged with the duty to investigate the old Politicians and other Public Office Holders.

(x) Persons or Politicians indicted and/or found guilty by the Panel are banned for life from holding any elective Office.

The 1st respondent denied these allegations and “put the appellant to the strictest proof thereof.” At the trial in the High Court the appellant gave evidence and called three other witnesses, while both respondents testified and called only one witness. The learned trial Chief Judge in a reserved judgment considered the evidence led at the trial and dismissed the petition in its entirety on the ground amongst others, that “the 1st respondent was not, and is not, a person banned for life, nor a person banned from seeking elective office” under Decree No. 25 of 1987.

It is against this decision that the appellant has now appealed to this Court. Seven grounds of appeal were originally filed. With leave of court five Amended Grounds of Appeal were substituted. At the commencement of hearing of the appeal the appellant sought for and was granted extension of time to appeal against the said judgment, extension of time within which to apply for leave to appeal and an order granting him leave to appeal. Consequently a Notice of Preliminary Objection earlier filed by the 1st respondent was withdrawn and struck out.

Counsel on both sides filed their briefs. They adopted their briefs of argument and in addition made oral submissions before us.

Mr. Lardner learned senior counsel for the appellant on page 2 of his brief identified five issues for determination in the appeal.

Mr. Fagbemi learned counsel for the 1st respondent, has however set out twelve issues in his brief for determination while Mr. Oyetunde, learned Principal State Counsel for the 2nd respondent identified four issues only. Mr. Fagbemi has however submitted preliminarily the issue of jurisdiction of the High Court to adjudicate in the matter and whether or not the condition precedent to the exercise of jurisdiction had been complied with by the appellant. I propose to take this aspect of the appeal first as it will decide ultimately whether or not other issues would have to be considered at all.

Issue of Jurisdiction

It must be observed at once that the issue does not arise from any of the five grounds of appeal filed by the appellant. It was also not raised at the trial in the High Court. It was, however, raised for the first time in this court by counsel for the 1st respondent in his brief of argument. It is significant to observe also that although the 1st respondent’s brief was served on the appellant, his counsel did not deem it necessary to file Reply brief on behalf of the appellant on the issue of jurisdiction as permitted by the Rules of Court. He made only brief oral comment in court. Suffice it to say at this stage that it is well settled that the issue of jurisdiction can be raised at any stage of the proceedings and up to the final determination of an appeal by the Supreme Court. The court can also raise it suo motu at any stage. It is an issue which goes to the root of the matter so as to sustain or nullify the trial court’s decision or order in respect of the subject matter of the case (see for example Obikoya v. Registrar of Companies & Anor (1975) 4 S.C. 31; Pan Asian Co Ltd. v. N.I.CO.N. (1982) 9 S.C. 1; Barclays Bank v. Central Bank of Nigeria (1976) 6 S.C. 175).

Mr. Fagbemi for the 1st respondent contended that Decree 25 of 1987 “was socio-political, as opposed to a legal matter which the legislature did not desire to subject to the searchlight or jurisdiction of the regular courts. He said the Decree (25) under section 2 empowered the 2nd respondent to declare at any time that a person either nominated to contest or a person who had in fact been elected to any elective office, was affected by that Decree, i.e. a person banned from holding such office. That sections 3-4 therein spelt out what any member of the public (including the appellant) might do by way of objection to the candidature and or election of any person. That section 5 gave exclusive jurisdiction to the Transition to Civil Rule Tribunal (hereinafter called the Tribunal) to act as an appellate body against any decision of the National Electoral Commission (hereinafter called N.E.C.), and that the Tribunal’s decision was final. He said by section 7(1) of the Decree no matter covered by it (Decree 25) shall be the subject of any legal proceedings in any court or Tribunal. We were also referred to para. 3(XIV) of the appellant’s petition which indicated that a report was made by him to the 2nd respondent alleging that the 1st respondent was a person banned for life; and that para. 4 of the Reply of the 2nd respondent showed that the 2nd respondent had not completed investigation on the appellant’s complaint.

It was submitted therefore that the High Court had no jurisdiction to entertain the appellant’s petition. He referred particularly to reliefs 1 & 2 of the petition. Continuing with his submissions, learned counsel said Decree 34 of 1987 was itself based on Decree 25 of 1987. He referred to section 34(1)(a) of Decree 37 and urged us to hold that the words “not qualified” therein could only mean “not qualified” under section 4(1)(d) of the same Decree 37, and that section 34(1)(a) could not be construed in isolation of section 4(1)(d) thereof.

It was further submitted that there was no evidence that NEC or the Tribunal had banned the 1st respondent herein from contesting an election. He said a certificate or other instrument from either of the two bodies was required to show that the 1st respondent was so banned.

That the High Court had no power to grant reliefs (1) & (2) claimed by the appellant which were specifically provided for under Decree 25 and not under Decree 37. That the appellant had jumped the gun by going to the High Court instead of waiting for the decision of NEC after lodging his complaint against the 1st respondent. He said we should hold that the petition was incompetent and that the High Court lacked jurisdiction to entertain an election petition based on the provisions of Decree 25 especially when the petitioner was not seeking to enforce the decision of NEC or of the Tribunal.

It was also submitted that even if the High Court had jurisdiction the conditions precedent to the exercise of that jurisdiction had not been complied with. Counsel referred to Exhs. C to C5 and said that the provisions of section 3(1) – 3(9) of Decree 25 had not been fully utilized or exhausted and there was therefore no cause of action yet. It was submitted that in an election petition, all preliminary statutory steps towards presenting a petition were fundamental and ought to have been strictly complied with. He cited in support – Ishola Noah v. British High Commission (1980) 8-11 S.C. 100 at 101; Madukolu v. Nkemdilim (1962) 1 All N.L.R. 587 at 595. We were also referred to the Digest of the Supreme Court Cases by Chief Fawehinmi, Vol. 3 page 723 under Elections.

Mr. Lardner, S.A.N., in a brief oral reply contended that the fact that a person fell within the ban in Schedules 1 or 2 of Decree 25 of 1987 was a ground upon which a petition pursuant to Local Government Elections Decree 37 of 1987 could be founded. He relied on the case decided by the Benin Division of this court (Coram: Ogundare, Ogundere and Achike, J.J.C.A) Ref. No. CA/B/91/88 Moses Iruobe v. Shagari Oni & Anor of 9/12/88, and submitted that in so far as that decision purported to state the law, this Division of the Court was bound to adopt and follow it. He did not however elaborate.

Mr. Oyetunde for the 2nd respondent offered nothing in respect of the issue of jurisdiction either in his brief or in Court before us.

Decree No. 25 of 1987

This Decree, Participation in Politics and Elections (Prohibition) Decree, places a ban or a disqualification on certain persons from contesting, holding or being appointed to any elective office or post or from contesting or seeking any public office or post as contained in Schedules 1 & 2 thereof. The National Electoral Commission (NEC) is empowered under the Decree either on its own motion or upon the objection by any person to declare, at any time, any person nominated to contest or already elected or appointed to any office or post, as a person affected by the Decree and that such a declaration shall have the effect of nullifying such nomination, election or appointment (see section 2). Section 3 subsections (1) – (9) spell out what any member of the public should do by way of objection to the nomination, election or appointment of any person affected by the Decree. Section 4 also sets out how any person may apply to the Commission for a determination that he is a person affected by the Decree. Section 5 then vests in the Transition to Civil Rule Tribunal the power to act as an appellate body from the decision of NEC and provides under section 6 thereof that the decision of the Tribunal shall be final.

Decree 37 of 1987.

This Decree, Local Government Elections Decree, provides in section 4(1)(d) that;

“4.(1) person shall not be qualified as a candidate to contest any local government election unless

(a) ……………………

(b) ……………………

(c) ……………………

(d) he is not a person banned or prohibited from participating in politics and elections in accordance with the Participation In Politics and Elections (Prohibition) Decree, 1987.”

Sections 31 & 32 give the High Court original jurisdiction to hear and determine any questions whether any person has become an elected member of a Local Government Council and to receive election petitions.

Section 34 sets out four specific grounds on which an election may be questioned. There is however what I call an important proviso at the end of the section. Section 34(1)(a), which is relevant in this appeal, says-

“34.(1) An election may be questioned on the following grounds –

(a) that the person whose election was questioned was at the time of the election not qualified or was disqualified from being elected as a member of a Local Government B Council: or

(b)……………. (omitted)

(c) …………… (omitted)

(d) …………… (omitted)

(2) …………… (omitted)

PROVIDED that nothing in paragraph (a) of subsection (1) of this section shall affect or invalidate any decision of the Commission or of the Transition to Civil Rule Tribunal that a person has been banned or disqualified pursuant to or under the Participation in Politics and Elections (Prohibition) Decree, 1987.”

An appeal lies from the decision of the High Court to this Court whose decision shall be final [see section 36 (ibid)].

It is to me clear from the provisions of Decree 37 referred to above that the High Court is unquestionably vested with jurisdiction to entertain the appellant’s election petition when it did. I reject the contrary submission of Mr. Fagbemi for the 1st respondent. I however agree with Mr. Fagbemi that the expression “not qualified” in section 34(1)(a) means “not qualified” under section 4(1)(d), and that the two provisions must be read together.

I now turn to the problematic clause, the proviso to section 34(1)(a) referred to above. The proviso appears to me to be saying that even though the High Court has the power to adjudicate, its decision shall have no effect on any decision of NEC or of the Transition to Civil Rule Tribunal, that any person has been banned or disqualified under Decree 25 of 1987. In other words, where the decision of the court tallies with the decision of NEC or of the Tribunal under section 34(1)(a) above, that a person is banned or disqualified all is well and good. But where the decision of the Court is in conflict with that of NEC or Tribunal, the decision of the NEC or Tribunal prevails except probably in a rare case where NEC or the Tribunal said someone was qualified and the court found him not qualified. This sort of situation is to say the least very unsatisfactory. As things stand, nothing stops any person banned or disqualified by the High Court or this Court from going back to NEC or the Tribunal for a determination as to whether or not he is a person affected by Decree 25 of 1987 (see sections 4 & 5 thereof). Is it also not correct that the Attorney-General of the Federation approved of the action? And this is what in my opinion gives weight to Mr. Fagbemi’s submission that “the legislator does not desire to subject matters under Decree 25 to the searchlight of regular courts.” Is it not common knowledge that some of –

“All persons who served as Secretaries to Federal and State Governments, Permanent Secretaries, Judges, Chairmen and members of Federal and State Boards of Statutory Corporations, and State owned Companies or on the Governing Boards of various institutions” (see para. 2 Schedule 1 of Decree 25 of 1987) who were declared automatically banned for life from holding any elective office or post, public office, political party office, whether elective or otherwise either in the government or in any political party without proof of any misdeed, indictment Or guilt by Iruobe v. Shagari Oni have already been cleared by NEC as not affected by Decree 25? Confusion is thus building up. This cannot be the intention of the legislator. The situation must be saved in time. It is a fact that NEC and the Tribunal have adopted the posture that the mere fact that a person comes within the provision of any of the paragraphs of Schedule One of Decree 25 of 1987 simpliciter does not make him a person affected by the Decree, and that such a person must in addition have been found guilty by a competent tribunal of inquiry as the case may be. I accept this interpretation firmly. I also believe that that is the stand of the Armed Forces Ruling Council (AFRC) the supreme law making body in the country as shown by the on going sale of “Clearance Forms” by NEC offices throughout the country which exercise is expected to last throughout the transition period. Thus the importance of a central and single body to deal with the tricky issue of ban, clearance or disqualification under Decree 25 cannot be over-emphasised. I have no doubt that sooner or later this court as the final court of appeal in election petition matters will have to take a second look at Iruobe v. Shagari Oni (supra). So, there is every necessity to be cautious. And it is significant to note that while an election petition must be filed within one month after the date on which an election is held, an objection or an application by any person to NEC for a determination may be made at any time. And even after the decision by the regular courts.

It is thus evident that any determination under section 34(1)(a) and section 4(1)(d) of the Decree 37 would be a determination in vain so long as it runs counter to any decision of NEC or Tribunal under Decree 25 that a person was banned or disqualified. But even then why should courts be made to decide again what has already been decided by either NEC or the Tribunal knowing very well that the decision of NEC or the Tribunal is final as provided under Decree 25? Is it to show that courts have nothing else to do? It is settled that Courts’ orders and decisions are meant to be obeyed and carried out subject only to a stay of execution – which is itself an order of court (see for example Bank of West Africa Ltd. v. N.I.P.C. Ltd. & Anor. (1962) 2 All N.L.R. 32). No Court will knowingly act in vain.

I have already held the view above that the High Court had jurisdiction to entertain appellant’s petition. But having regard to what I have said about the proviso to section 34(1)(a) of Decree 37 above, I am led to consider seriously the submission of Mr. Fagbemi that the appellant ought to have fully utilised or exhausted the proceedings and remedies outlined in Decree 25 before filing this petition in the High Court (see particularly para. 3(XIV) of the appellant’s petition and para. 4 of the Reply of the 2nd respondent). I think there is substance in this submission. Certainly if the appellant had exhausted Decree 25 before filing the petition, there would have been already a decision by NEC or the Tribunal one way or the other and evidence to that effect would have been available to prove that any person was-banned or disqualified under Decree 25 and so also under section 34(1)(a) of Decree 37. The evidence one way or the other would also certainly enable the Court to decide whether it would proceed to determine the petition or not. To me this is the only reasonable construction to be placed on the proviso which will remove uncertainty, friction, collision or confusion in the workings of both Decree 25 & 37. I am therefore irresistibly inclined to agree with Mr. Fagbemi that particularly with regard to the proviso to section 34(1)(a), the appellant herein ought to have exhausted his remedies under Decree 25 before filing the present petition under Decree 37. All indications suggest to me that this is a condition precedent to the filing of a petition under paragraph (a) subsection (1) of section 34 of Decree 37, as in the appeal before us.

I have carefully read the case of Iruobe v. Shagari Oni (supra) relied upon by Mr. Lardner for the appellant. I observe that the issue of jurisdiction or competence was not raised in that case. I can therefore safely conclude by saying that this present action is incompetent (see Madukolu v. Nkemdilim (supra). The non-fulfilment of the condition precedent to the exercise of jurisdiction is fatal and rendered the proceedings a nullity.

Having regard to all I have said above, I found it extremely unnecessary to proceed to consider the appeal on its merit. I will say it again that as a court of law this Court would knowingly do nothing in vain. The action filed being incompetent, the proper order to make is that striking out the suit. Accordingly, Suit No. EDLG/1/88 filed at the Ibadan High Court on 5/1/88 is hereby struck out. This shall be the order of the High Court.

The 1st and 2nd respondents are awarded costs of N200.00 each.

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Other Citations: (1989)LCN/0099(CA)

First Bank of Nigeria Limited V. Pan Bisbilder (Nigeria) Limited (1989)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A.

The plaintiff sued the defendant in the sum of N429, 860.00 as special and general damages for a breach of contract or agreement for loan granted under the Agricultural Credit Guarantee Scheme and guaranteed by the Central Bank under the said Scheme. In the alternative the plaintiff claimed for breach of duty or default by the defendant under the Loan Agreement.

Pleadings were ordered and exchanged at a statement of claim and an amended statement of defence. At the hearing both parties led evidence and addressed the court through their respective counsel. The plaintiff called four witnesses as against one called by the defendant. The learned trial Judge, Oni-Okpaku, J., in a reserved and well considered judgment found for the plaintiff in the sum of N57, 429.00 with costs assessed at N600.00.

The parties are dissatisfied with the judgment and have appealed to this court. The defendant is contesting its liability as well as quantum of damages while the plaintiff is contesting the measure of damages awarded to it. The fact of the case is not seriously disputed. The plaintiff obtained loan of N116,500.00 from the defendant (hereinafter referred to as the appellant) under the Agricultural Guarantee Credit Scheme Fund Act 1977 whereby the appellant granted loan to the plaintiff (hereinafter referred to as the respondent) which loan was guaranteed by the Central Bank of Nigeria. The loan was advanced in two instalments of N60,000.00 and N56,500.00. The first segment of the loan was disbursed fully while the remaining portion was only partially disbursed. The appellant withheld N30,000.00 of the N56,500.00 in satisfaction of a previous overdraft granted to the respondent. The appellant contended that the withholding of the sum of N30,000.00 is not without the respondent’s consent, a fact which the latter denied. The learned trial Judge rejected the respondent’s denial nevertheless it found the agreement to divert the N30,000.00 to a purpose other than that of Agricultural Guarantee Credit Scheme illegal.

It is apt at this stage to consider the appellant’s complaint against the trial court finding it liable to the respondent. To this end it filed three grounds of appeal, two of law and the other the omnibus. The grounds of appeal read:-

“(1) Having held that “The defendant and plaintiff made separate arrangement to divert the N30,000.00 (Thirty thousand naira)” the learned judge of the High Court erred in law when she proceeded to enter judgment in favour of the plaintiff in this suit.

PARTICULARS OF ERROR

(a) The said “separate arrangement was a collateral agreement which was binding on both parties and therefore a good defence for the defendant’s failure to disburse the N30,000.00 to the plaintiff for the Agricultural Loan.

(b) The learned judge of the High Court failed to take cognizance of the fact that “the separate arrangement to divert the N30,000.00 was a waiver of the plaintiffs right to insist that the said amount should be disbursed to the plaintiff under the agreement. Having regard to the above the learned Judge of the High Court ought to have dismissed the plaintiff’s claim since the plaintiff was not in law entitled to approbate and reprobate to the detriment of the defendant.

2. The judgment is against the weight of evidence.”
3. The learned trial Judge erred in law in holding that the variation of the contract is in breach of an essential condition of the loan the variation having not been disclosed to the Central Bank.

PARTICULARS OF ERROR

(a) Failure to disclose the variation to the Central Bank cannot vitiate the variation vis-‘E0-vis the parties in this suit as the Central Bank is not a party in the instant suit.

(b) The said variation is binding on and enforceable by the parties to the suit irrespective of the fact that the Central Bank was not a party to the variation.

(c) The vitiation of the guarantee does not amount to a breach of the original contract as this could only affect the right of the appellant to make any recovery from the Central Bank.”

In this connection, the following issues were formulated in the appellant’s brief:-

“1. Whether the Judge of the High Court was right in holding that the appellant was in breach of loan agreement in not disbursing the sum of N30,000.00 to the respondent even though the learned judge rightly held and believed that parties had agreed that the said N30,000.00 should be withheld by the appellant against the previous loan.

2. Whether the failure of the parties to inform the Central Bank of the collateral agreement between the parties renders the collateral agreement unenforceable or nugatory.
3. Whether the parties are not bound by the collateral agreement.”

In this regard, the issues formulated by the respondent reads:-

“(a) Whether the finding by the learned trial Judge that “both parties had agreed that the N30,000.00 of the N56,500.00 enhancement loan was for the overdraft of the plaintiff”, is exhaustive of his follow up finding or conclusion as to the ostensible nature or purpose of the said agreement of loan being in order to divert N30,000.00 thereof to paying off a pre-existing overdraft.

(b) Whether the said agreement as found and defined by the learned trial Judge is valid and a good defence to an action for breach of the agreement of loan?”

The issues for determination, to my mind, are

“(a) Whether the learned trial Judge (having found that the agreement to divert N30,000.00 from the poultry to satisfy the respondent’s earlier obligation to the appellant is illegal) can proceed to give judgment to the respondent, inspite of its involvement in the illegality.

(b) Whether the failure of the parties to inform the Central Bank of the collateral agreement between them rendered the collateral agreement nugatory.

(c) Whether the learned trial Judge was right in holding that the appellant was in breach of loan agreement in not disbursing the sum of N30,000.00 to the respondent even though the learned Judge had held that parties had agreed that the said N30,000.00 should be withheld by the appellant against the previous loan.

(d) Whether it was still open to the learned trial Judge to hold that the appellant had breached its fiduciary duty to the respondent having found parties to be wrongdoers.”

The learned counsel for the appellant in both the appellant’s brief and his oral submissions launched a two prong attack on the judgment. Firstly, he contended that although, the respondent denied the collateral agreement by which it was agreed that N30,000.00 out of the loan should be spent to defray its pre – 1979 overdraft, it wrote Exhibit ‘V’ in 1980 as well as Exhibits ‘J’ and ‘T’ in 1982confirming that the pre -1979 over-draft was in 1980″merged as overdraft granted for the farms operation.” Appellant’s learned counsel contended further that the learned trial Judge accepted the appellant’s claim “that both parties had agreed that the N30,000.00 of the N56,500.00 of the enhancement loan was for the overdraft of the plaintiff.” He then submitted that failure to disclose the variation to the Central Bank did not vitiate the agreement or render same unenforceable. He submitted that the variation can only affect the right of the appellant to make any recovery from the Central Bank.

Secondly, the learned counsel for the appellant submitted that even if the collateral agreement was vitiated a fact he did not concede the respondent who was a party to the agreement cannot take advantage of same against the appellant.

The respondent replied that the failure to disclose the bilateral contract to divert part of the loan to the Central Bank is not the basis of the learned trial Judge’s failure to uphold it but the fact of its basic invalidity as an illegal contract. Counsel submitted that the finding that failure to disclose was a breach of an essential condition of the loan is well founded because the contract of loan being for a loan sui generis and one governed by statute was by its very nature a tripartite contract; it was therefore not competent to modify or vary it without the concurrence of the Central Bank. Counsel for the respondent contended further that if the variation of the agreement of loan is illegal as being in breach of statute then it was incompetent. He argued that the parties cannot by their conducts or agreement waive an illegality.

The learned trial Judge in the course of reviewing evidence found as follows:-

“Parties are bound by their pleadings and plaintiff cannot therefore be allowed to argue the converse of his pleadings and the documents estopping him. I therefore, believe that both parties had agreed that the N30, 000.00 of the N56,500 enhancement loan was for the overdraft of the plaintiff. But the next question is ‘was this subsequent agreement between the plaintiff and the defendant about the loan, valid without the consent of Central Bank that guaranteed it?”

The learned trial Judge concluded as follows:-

“The law in section 4(2) enabling Central Bank to give this guarantee is the Agricultural Credit Scheme Fund, Decree No. 20 of 1977 and this law provides in Section 13(1).

“13(1) No loan granted pursuant to this Decree, shall be applied to any purpose other than that for which the loan was granted.”

The purpose in this instant case being poultry farming according to paragraph ‘C’ in the schedule to the Decree. And by Section 19 of this Decree, “loan” includes advances, overdrafts, any credit facility.

Thus even though the defendant and plaintiff made their separate arrangement to divert the N30,000.00, I believe that they did not disclose this variation to the loan agreement to Central Bank because there is no evidence to prove that they did. Accordingly I hold that the variation is a breach of the essential condition of the loan agreement, since Section 13(1) of Decree 20 of 1977 the Statutory Provision governing it forbids it and it is mandatory and therefore the contract of guarantee with Central Bank is thereby vitiated.”

The Central Bank not being a party to the variation or diversion of the sum of N30,000.00 vitiates the guarantee agreement. It, therefore, had the effect of releasing the guarantor, the Central Bank of Nigeria from its obligation under the contract of guarantee. But this should not, in my opinion, have the effect of rendering the contract as a whole unenforceable. The loan agreement subsists as an ordinary banking transaction between a banker and its customer but the guarantor or surety is released by the alteration. This view is supported by Graham Paul, J., in the case of John Hair Ltd. v. S.A. Oladunjoye (1936) 13 N.L.R. I cited by the learned trial Judge. That judgment quoted at p.7, with approval, the dictum of Lord Loughborough in Rees V. Berrington 2 Yes 543. The dictum reads as follows:

“It is the clearest and most evident equity, not to carry on any transaction without the knowledge of the surety who must necessarily have a concern in every transaction with the principal debtor. You cannot keep the surety bound and transact his affair (for they are as much his as your own) without consulting him.

You must let him judge whether he will give that indulgence contrary to the nature of employment.”

It could not be otherwise since contract of guarantee mean no more than assurance to the creditor that if the principal debtor fails to pay the guarantor or surety would repay the debt. And where, as in this case, there is an agreement altering a guarantee contract, made without the knowledge and consent of surety, the surety is discharged unless the alteration is neither substantial nor prejudicial to the guarantor. See Awolesi v. National Bank of Nigeria (1962) 1 All N.L.R. 172 where Taylor, F.J., held at pp. 175-176 as follows:-

“When one goes further and looks at the other clauses in the agreement; one finds that the words “ultimate balance” in clause 3, and “account” in clause 6 can only be read in the light of clause 1 as relating “the existing account.” If the parties intended that the principal debtor should be placed in a position where he could open more than one account, and that the guarantee should cover such accounts, then in my judgment they should say so in clear and unambiguous words, for it has been said that the law favours a surety and protects him with considerable vigilance and jealousy. In the case of Ward v. National Bank of New Zealand (1882 – 3), 8 A.C. 755 at 764, Lord Justice Cotton’s observations in Holme v. Brunskill (1877-78) 3 Q.B.D. 495 are contained in the judgment of their Lordship delivered by Sir Robert P. Collier which reads thus:-

‘The true rule, in my opinion, is that if there is any agreement between the principals with reference to the contract guaranteed, the surety ought to be consulted, and that, if he has not consented to the alteration, although in cases where it is without inquiry evident that the alteration is unsubstantial, and one which cannot be prejudicial to the surety; the court will not in an action against the surety, go into an enquiry into the effect of the alteration.’

A little earlier their Lordship said at page 763 that:-

“A long series of cases has decided that a surety is discharged by the creditor dealing with the principal or with a co-surety in a manner at variance with the contract, the performance of which the surety had guaranteed.”

It is amply demonstrated by the case quoted earlier in this judgment and a long line of cases that on no account is the contract or the collateral agreement vitiated by the alteration of the contract without surety’s knowledge and consent. What the surety gets in that circumstance is a discharge if the alteration is substantial or prejudicial to him. There is no authority, and, if there were, it was not cited to us that a principal debtor as, in this case, is protected if with its eyes wide open it entered into an agreement to its detriment with the creditor.

In the result, I am to examine the provisions of section 13 of the Agricultural Credit Guarantee Scheme Fund Act No. 20 of 1977 to ascertain that it has otherwise provided. The section provides thus:-

“13 – (1) No loan granted pursuant to this Decree shall be applied to any purpose other than that for which the loan was granted.

(2) Any person who applies any loan granted pursuant to this Decree in contravention of subsection (1) of this section shall be guilty of an offence and shall be liable on conviction to a fine of an amount of the loan in respect of which the offence was committed or to imprisonment for not less than five years.

(3) Where an offence under this section committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of any director, manager, secretary or other similar officer of the body corporate (or any person purporting to act in any such capacity) he as well as the body corporate shall be deemed to be guilty of the offence and may be proceeded against and punished accordingly.”

The enactment has merely prohibited application of loan granted pursuant to Act No. 20 of 1977 to a purpose other than for which it is granted but has not expressly provided that the contract be void. The enactment, no doubt, has provided a penalty for a breach of the statutory prohibition. Where a statute merely prohibits a certain class of contract by stipulating a penalty for the prohibition without expressly providing whether or not the contract is void it does not follow ipso facto that the contract is void or illegal. The court is to consider whether the statute is directed at discouraging entry into such contracts or whether it was intended at making revenue for the government or whether it is aimed that the contract shall not be entered into so as to be valid. In the case of R.C. Ricket v B. V.A. Ltd. (1960) 5 F.S.C. 113 Hubard, Ag F.J., while considering order 48 rule 3 of the High Court (Civil Procedure) Rules said at p.116 of the report;

“In Melliss & Anor. v. The Shirley and Freemantle Local Board of Health (1885) 16 Q.B.D. 446,451 Lord Esher, M.R., said;

“Although a statute contains no express words making void a contract which it prohibits, yet, when it inflicts a penalty for the breach of the prohibition, you must consider the whole Act as well as the particular enactment in question, and come to a decision, either from the content or the subject matter, whether the penalty is imposed with intent merely to deter person from entering into the contract, or for the purposes of revenue, or whether it is intended that the contract shall not be entered into so as to be valid at law.” Although this passage deals with prohibited contracts, I apprehend that it is equally applicable to contractual acts, and a fortiori in a case where the act is not expressly prohibited, but merely made subject to a fine. I have no hesitation in holding that the fine is imposed in O 48 r 3 with intent merely to deter person from intermeddling and that the enactment, does not absolutely prohibit intermeddling, which if it did, all acts of an executor de son tort would, presumably, be void, whereas it was held as long ago as 1598 in Coulter’s case (5 CO Rep 98) that “all lawful acts, which an executor de son tort doth are good”, and…”

In the circumstance, I am satisfied that the enactment does not forbid a banker from exercising its long established common law right to consolidate or merge accounts of a customer; that this right is not strictly a lien; and that it can be exercised without notice to the customer, unless the contract provides otherwise. See National Westminster Bank Ltd. v. Halesowen Press Works Ltd. (1972) A.C. 785; Barclays Bank Ltd. v. Okenarhe (1966) 2 Lloyds Rep 87 and Garnet v. Mckewon (1872) L.R. 8 Ex 10. In the result, the appellant rightly invoked its power to combine the customer’s accounts. I therefore agree with the learned counsel for the appellant that the diversion of the N30,000.00 to settle the respondent’s overdraft is binding on both parties. The learned trial Judge so found and that finding subsists.

Be that as it may, the respondent, who was the plaintiff in the court below, sued on a contract which itself proclaimed illegal. The question is whether it can enforce an illegal contract? The learned counsel for the appellant, in this connection, submitted that if the agreement is vitiated the respondent who was a party to the agreement cannot take advantage of same against the appellant. There is force in the submission of the learned counsel for the appellant. The respondent in exhibit ‘T’ written on 20th May, 1982 acknowledged the merging of the over-draft with the loan in the following words:

“Before 1979 the company owed N30,000.00 overdraft which in 1980 was merged as over-drafts granted for the farms operation.”

The same respondent pleaded as follows in paragraph 10 of its statement of claim:-

“10. In or about March, 1980, when the plaintiff realised that the farm project cannot sufficiently pay its way or become a viable proposition with its then limited stock of birds and that money will also be required for some improvements in the structure of the said farm, the plaintiff applied for an enhancement of the loan of N60,000.00 earlier granted to it by the defendant by a margin of N82,000.00 divided according to the purposes for which same was required into N49,000.00 for improvements and running costs of the farm and N33,000.00 for re-stocking the farm with new birds. After a series of correspondence between the parties upon which the plaintiff will found at the hearing of this action, the defendants finally approved for the plaintiff in connection with the farm project aforesaid an additional facility of N56,500.00 on the same terms and conditions as before except that of the said amount of N56,500.00, N26,500.00 was granted by way of loan (making a total loan of N86,500.00) and N30,000.00 by way of overdraft. The said transaction was equally guaranteed by the Central Bank of Nigeria as before backed by a guarantee certificate which is in the possession and control of the defendants. The plaintiff will found upon the said document. All told the total facility approved for the poultry farm project aforesaid and guaranteed by the Central Bank of Nigeria was a sum of N116,500.00.”

(italics mine)

The appellant, the defendant in the court below, joined issue with the respondent in paragraph 8 of the statement of defence. It reads thus:

“8. As to paragraph 10 of the statement of claim the defendant admits that the plaintiff applied for an enhancement of the loan by asking the defendant for an additional N82,000.00 but the defendant approved for the plaintiff an additional loan of N56,500.00 on the understanding that part of the additional loan would go to defray the outstanding overdraft in the plaintiff’s current account which overdraft stood at N30,000.00 at the time.”

On the issue thus joined, the learned trial Judge after a painstaking trial and careful review of the fact in issue found as follows:-

“Parties are bound by their pleadings and plaintiff cannot, therefore, be allowed to argue the converse of his pleadings and the documents estopping him. I, therefore, believe that both parties had agreed that the N30,000 of the N56,500.00 enhancement loan was for the overdraft of the plaintiff.

Accordingly I hold that the variation is a breach of the essential condition of the loan agreement since Section 13(1) of Decree 20 of 1977 the statutory provision governing it forbids it and it is mandatory and therefore the contract guarantee with Central Bank is thereby vitiated.”

The implication of the voidance is that neither party can seek the benefit of the guarantee provided by Central Bank of Nigeria under Act 20 of 1977 because the illegality of either party estopped it from enforcing the guarantee agreement. In other words, the Central Bank of Nigeria, as the surety, is discharged of its obligation under the guarantee certificate because not only has the surety not been consulted but also a substantial or fundamental alteration to the contract has been made without its knowledge and consent. It is the guarantee agreement which is void and unenforceable because of the deceit of the two, principal debtor and creditor which has resulted in an illegal contract.

In Onyiuke v. Okeke (1976) 3 S.C. 1 Alexander, C.J.N. at p.7 of the report stated:-

“It is the law that a contract is illegal if the consideration or the promise involves doing something illegal or contrary to public policy; and an illegal contract is void and cannot be the foundation of any legal right. This proposition of law was clearly enunciated by Brett, M.P., in Herman v. Jeuchner (1885) 15 Q.B.D. 561, at page 563 as follows:

“When the object of either the promise or the consideration is to promote the committal of an illegal act, the contract itself is illegal and cannot be enforced. In Halsbury’s Laws of England, 3rd Edition, volume 8, page 126 paragraph 218, the law on the point is also succinctly stated as follows:-

“A contract is illegal where the subject – matter of the promise is illegal or where the promise is illegal or where the consideration or any part of it is illegal.”

And in William Hill (Park Lane) Ltd. Y. Hofman (1950) 1 All E.R. 1013, it was held that a deed of charge executed in respect of gaming debts must by virtue of the Gaming Act 1835, be deemed to have been executed for an illegal consideration and was therefore void.”

The learned trial Judge having vitiated the guarantee agreement and released the surety from its obligation thereof the principal debtor and creditor return to status quo in the regulation of their relationship. In this circumstance, usual or ordinary banking practice whereby a bank has an untrammeled right to combine a customer’s account become operative or applicable. The respondent can, therefore, not complain about the conduct of the appellant which satisfied the respondent’s previous overdraft from the proceed of a loan it has just received. The practice of the trade permits what the appellant did.

The last complaint of the appellant is found upon the finding of the learned trial Judge that the appellant applied an undue influence on the respondent to yield to the collateral agreement. Learned counsel to the appellant contended that the respondent’s defence being a total denial of the collateral agreement the defence of coercion or undue influence was not open to it.

The learned counsel for the respondent apparently conceded this point because he considered the appreciation of the use of undue influence of a banker over its customer to acquiesce in the diversion of part of the loan to repayment of a pre-existing overdraft as a mere observation or obiter dictum.

He is of the view that the learned trial Judge would have come to the same conclusion without what he considered to be an innocuous remark. He referred the court to the cases of Sowemimo v. Somisi (1982) 1 All N.L.R. (Pt.1) 49 at 56-57 which quoted with approval the case of Ukejianya v. Uchendu (1950) 13 W.A.C.A. 45, 46.

Finally on the same, the learned counsel for the respondent submitted that the appellant’s brief only questioned the charge of undue influence which query had not found any expression in any ground alleging error in law or misdirection. For this submission, he relied on the cases of Odesanya v. Ewedemi (1962) 1 All N.L.R. (Pt. 2) p.320, 321; Melwani v. Feed Nation Limited (No.1) (1986) 5 N.W.L.R. (Pt.43) 587.

I have carefully considered the submissions of the learned counsel for both parties and I am of the opinion that the complaint can be conveniently taken under the omnibus ground. The substance of the objection is that neither is undue influence pleaded nor evidence raised therefor in support. I have taken a hard look at both the pleadings and the evidence, both of which, the learned trial Judge copiously reviewed, and cannot find where coercion formed part of the respondent’s case. I am, therefore, in agreement with the respondent’s counsel, who adroitly conceded the question by describing it as an Obiter dictum or as a mere innocuous remark at that. Finally on this issue, it is trite that the relationship of a principal and agent has no application in the case of a wrongdoer: See Sharland v. Mildon 67 Eng. Report 997. The appellant had admitted that it diverted part of the loan to repay the pre-existing overdraft of the respondent. The respondent although did not expressly admit to have consented to the diversion of loan to pay a pre-existing overdraft nevertheless the learned trial Judge found that it did. Not only that it admitted the loan was paid into its existing current account, on which they continued with their existing financier business, which entail buying items for some petty traders at interest rate. If the respondent is a wrongdoer he can have no principal since the principal would also be a wrongdoer and where both of them are wrongdoers there can be no agency. I think, therefore, that the learned trial Judge wrongly held that a fiduciary relation thus existed between the parties and on that account found the appellant liable.

The appeal, therefore, succeeds on grounds 1, 4 and 6 of the grounds of appeal and it is allowed. The decision of the court below including the order as to costs is set aside. Accordingly, it is no longer necessary to consider the remaining appellant’s grounds of appeal which deal with measure of damages. It necessarily follows that the cross-appeal which is also challenging quantum of damages fails and it is also dismissed. There is order as to costs which I assess at N500.00 to the appellant.

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Other Citations: (1989)LCN/0098(CA)

Major Adebowale Basorun V. Chief of Army Staff & Ors. (1989)

LawGlobal-Hub Lead Judgment Report

AWOGU, J.C.A.

This application raises an important procedural issue. It arose in this manner. The plaintiff brought a claim against the defendants, who were initially represented by Ayoola from the chambers of Aminu Dahiru & Co., Solicitors. At the next hearing date, M. O. Adio, a Director of Litigation in the Federal Ministry of Justice, announced his appearance for the defendants. The firm of Aminu Dahiru & Co., had not withdrawn their appearance for the defendants. Alao Aka-Bashorun, who led two other counsel from his chambers, objected to the appearance of M. O. Adio as being irregular. The learned Judge, after listening to arguments on the merits, dismissed the objection. Against this dismissal, counsel for the plaintiff filed a Notice of appeal. There was also before the court a motion for stay of further proceedings pending the determination of the appeal against the appearance of M. O. Adio. This motion was fixed for April 10, 1989.When the hearing resumed, M. O. Adio moved orally his objection to jurisdiction. The motion for stay of further proceedings was also taken. After the hearing of the two application, ruling was adjourned to May 16, 1989.

On April 18, 1989, counsel for the plaintiff filed a motion before this court for an order staying further proceedings before the Lagos High Court pending the determination of the appeal. The Affidavit of Urgency stated that:-

“2. The appellant filed a notice of appeal herein on the 7th March, 1989.

3. That the appellant filed an application for stay of further proceedings before this Honourable Court today the 18th April, 1989.
4. That unless the said application for stay of further proceedings is urgently considered by this Honourable Court the appeal will be rendered nugatory.
5. That the respondents will not be damnified if this application is urgently considered.”

When the application came up for hearing, M. O. Adio for the respondents, filed a motion to strike out the pending application, on the following grounds:-

(i) that there is no appeal before this Honourable Court.

(ii) that an application for stay of proceedings is still pending in the lower court;

(iii) that the application for stay of further proceedings dated 18th April, 1989 filed in this Honourable Court is frivolous and an abuse of the process of the court; and

(iv) for any further or other order or orders as this Honourable Court may deem fit to make in the circumstances.

The affidavit in support of the motion, sworn to by one Osahon Idemudia, a State Counsel in the chambers of the Attorney-General of the Federation, stated as follows:-

“5. That I was in court with Mr. M. O. Adio on Tuesday, 11th April, 1989 when arguments on stay of proceedings and jurisdiction were taken by His Lordship, Mr. Justice Olusola Thomas in the Lagos High Court No. 5 and ruling was fixed for 16/5/89.

6. That the said ruling on stay of proceedings and jurisdiction has not been delivered till now as 16th May 1989 is some couple of weeks ahead.
7. That without waiting for the ruling in the earlier arguments the respondent has filed another application for stay of proceedings dated 18th April, 1989.”

It is clear from the motion that the objection to the present application was that a similar motion was pending in the lower court and was yet to be ruled upon. The motion in objection relied upon Section 18 of the Court of Appeal Act 1976, Order 3 rule 3 (4)(5) of the Court of Appeal Rules, 1981 and Section 6(6)(a) of the Constitution of the Federal Republic of Nigeria 1979.

In arguing the application for stay of further proceedings, Aka-Bashorun for the applicant relied on his affidavit in support of the application. He said that when M.O. Adio was allowed to appear, the applicant appealed against the order allowing him to do so. Inspite of the appeal, the learned Judge allowed M.O. Adio to argue on the issue of jurisdiction, even when the applicant had filed a motion for stay of further proceedings. The learned Judge then adjourned the issue of jurisdiction, and for stay, for a ruling, thereby allowing M. O. Adio to continue to appear inspite of the objection. He said that unless his application for stay in this court was granted, M. O. Adio would continue to appear even though an appeal was pending against his appearance. He conceded that the learned Judge was yet to rule on his application for stay but contended that if he delivered the ruling on jurisdiction along with that for stay, his appeal against the appearance of M. O. Adio would be rendered nugatory. He said that this raised a special circumstance for which this court should consider the application for stay without the benefit of the ruling on a similar application made before the lower court. He urged the court to grant his application for stay and to direct the lower court not to rule on the issue of jurisdiction. In his reply, M. O. Adio for the respondents, stated that an appeal did not operate as a stay of execution, and cited in support Vaswani v. Savalakh (1972) 1 All N.L.R. (Pt. 2) 483 at 488. He said that the lower court over-ruled the objection against his appearance and he was therefore entitled to continue to appear because a stay had not been granted inspite of the pending appeal. He submitted that the application before the court was incompetent as the court below was yet to rule on the issue of jurisdiction, as well as on the stay of further proceedings. As it were, the applicant came to this court for a stay when no appeal was pending. He cited in support Bank for Credit & Commerce V. Anenih & Ors., CA/L/375/87 of 6th January, 1988 (unreported); Kigo V. Holman (1980) 5-7 S.C. 60. On the propriety of the present application, he urged the court not to allow it and to await the ruling of the lower court on the issue. He cited in support Order 3 rule 3(4) of this court, and Obikoya v. Ford Financial Trust Ltd., CA/L/19M189, delivered early this morning. He urged the court to refuse the application as it was premature. Bashorun conceded that jurisdiction was yet to be ruled upon, but posed the question as to whether M. O. Adio whose appearance was objected to, or the firm of Aminu Dahiru, was the person competent to raise it. He said that by allowing M. O. Adio to do so, if the objection to jurisdiction succeeded, the appeal against the appearance of M. O. Adio would be rendered nugatory.

The important procedural point involved in this appeal is the propriety of this court considering an application for stay of further proceedings when a similar application was yet to be ruled upon by the lower court. The attitude of this court has always been guided by the provisions of Order 3 rule 3(3)(4) of the Rules of the Court of Appeal 1981 which state as follows:-

“3(3) Where an application has been refused by the court below, an application for a similar purpose may be made to the court within fifteen days after the date of the refusal.

(4) Wherever under these Rules an application may be made either to the court below or to the court it shall not be made in the first instance to the court below except where there are special circumstances which make it impossible or impracticable to apply to the court below.”

(See Obikoya V. Ford Financial Trust Ltd., (supra) p.9)

In other words, assuming there is a valid appeal pending against the appearance of M. O. Adio, such an appeal would not operate as a stay of further proceedings, and the provisions of Section 18 of the Court of Appeal Act, 1976, would apply. It states:

“An appeal under this Part shall not operate as a stay of execution, but the Court of Appeal may order a stay of execution, either unconditionally or upon the performance of such conditions as may be imposed in accordance with rules of Court.”

Although we are concerned here with “stay of proceedings” and not with “stay of execution”, decided cases suggest that the distinction is inconsequential. According to Karibi-Whyte, J.S.C., in Akilu v. Fawehinmi (No.2) (1989) 2 N.W.LR. (Pt. 102) 122 at 165.

“This second category is generally referred to as a stay of execution or injunction or stay of proceedings. The effect is generally the same, namely, to suspend any proceedings in relation to the matter.”

In other words, the provision of Section 18 of the Act would apply to the present application, the only problem being that there is a pending application in the lower court which is yet to be disposed of Order 3 rule 3(4) does not, of course, forbid the making of an application to this court, save where there are special circumstances which make it impossible or impracticable to apply to the court below.” The objection, as I understand it, is not that an application has been so made, but that it is yet to be disposed of. Aka-Bashorun’s contention, however, is that the Ruling on the said application will be delivered along with the Ruling on Jurisdiction, raised by the very M. O. Adio, whose appearance is the subject of the appeal. In consequence, he urged upon us to consider the desirability of restraining the lower court from delivering the Ruling on jurisdiction, so that if the Ruling on stay of proceedings was dismissed, he would have at least a chance of his present application here being considered, and that unless this was done, the pending appeal against the appearance of M. O. Adio would be rendered nugatory. In my view, there is good sense in this contention. Ikabala & Ors. v. Ojosipe (1972) 4 S. C. 86, raised a not too dissimilar issue, to which Elias, C.J.N., responded at page 92.

“The learned Counsel for the applicant invited us to make a definitive ruling on the question whether or not notice of appeal from the Ruling of a High Court Judge should operate as a stay of execution, or of proceedings, arising out of his decision, in the absence, apparently, of any contrary direction either by that High Court or by the Supreme Court. We are of the opinion that it would be clearly undesirable that a Judge in the court below who has proper notice of an appeal to this court should nonetheless proceed with the case in disregard of such notice….We therefore think it inappropriate to lay down any general rule that notice of appeal to a superior court, if duly given to a lower court, should be deemed to operate in every case as a stay of execution of the decision of the lower court.”

Coker, J.S.C., was faced with not a totally dissimilar situation in Vaswani Trading Company v. Savalakh & Co., (1972) 12 S. C. 77, where he said at page 88:

“Whilst by virtue of the provisions of the section, an appeal or the filing thereof could not eo ipso operate as a stay of execution, clearly in practice, the position should be different where apart from filing an appeal, the prospective appellant also files an application in this court, by which a stay of execution of the same judgment is sought. In such circumstances, a general appraisal of the whole situation is absolutely necessary and it is most desirable that the court should ensure that, at that stage of the proceedings, it is not possible for any party to present it with a fait accompli.”

Although there is a pending application for stay which the learned Judge is yet to consider, prudence dictates that he should have first ruled on the application before considering any objection to jurisdiction by the very counsel whose appearance is the subject of the appeal. Had this been done, the question of whether or not there is an appeal with arguable grounds would have enabled this court to decide whether or not there is in fact a valid appeal pending before us. By reserving a Ruling jointly on jurisdiction/stay, the applicant has a Sword of Damocles hanging over his head, and has therefore chosen to play safe by filing the present application. Common sense commends the approach. So, too, the Law, but for the provisions of Order 3 rule 4, quoted above. Although the affidavit in support of the application does not so clearly state, this very situation creates a special circumstance for which the present application should be considered by this court and, in my view, allowed. This court does not have the jurisdiction under Section 18 of the Court of Appeal Act to stop the lower court from delivering its Ruling on jurisdiction, since there is no application for Prohibition to that effect, but under the special circumstances now apparent, it can entertain an application for stay of further proceedings without the lower court ruling on the application now pending before it. Hopefully, we understand that Ruling on both issues has been postponed since the learned Judge was apprised of the fact that this application was pending. The good spirit is to be commended, as it has given meaning to the present ruling. Accordingly, the present application succeeds and a stay of further proceedings in Suit No. M/23/89 now pending before Olushola Thomas, J., in High Court NO.5 of Lagos State is hereby stayed pending the determination of the appeal now pending in this court over the appearance of M. O. Adio in the said proceedings before Olushola Thomas, J. There will be no order as to costs.

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Other Citations: (1989)LCN/0097(CA)

Sikiru Ikuogbogun & Ors V. Chief Adeleke Rabiu G. B. (1989)

LawGlobal-Hub Lead Judgment Report

OMOLOLU-THOMAS, J.C.A. 

The appellant in this case appealed against the decision of the Hon. Justice Oluborode of the High Court of Oyo State at Oyo in a Petition in which he was the 1st respondent in the Councillorship election held on 12th December, 1987, in Ward 3 of Ifedapo Local Government Council of Oyo State where the petitioner sought the nullification and cancellation of the said councillorship election, a declaration that the nomination of the petitioner be declared valid, and an order for fresh election to be conducted in the area.

After the exchange of pleadings the learned trial Judge proceeded to hear the case on the statement of facts which the parties were relying upon, respectively.

The case of the petitioner in summary was that the petitioner and the 1st respondent were both prospective candidates for the Local Government Election in the said Ward 3 in Ifedapo Local Government. The petitioner, having complied with the nomination procedure, his name was included on the nomination list of candidates to contest the election. He was later informed that an objection had been raised against his candidature on the ground that he had been convicted for an offence of affray at the Chief Magistrates’ Court, Shaki, and sentenced to a fine. The petitioner wrote his defence to the objection and addressed it to the 2nd respondent. A few days later his name was excluded from the final nomination list, in consequence of which the 1st respondent, as the only remaining candidate, was returned unopposed by the 3rd respondent.

The case of the 1st respondent was that he was lawfully returned unopposed because the petitioner had been convicted of offences committed in 1979 and 1982.

The 1st respondent as well as the petitioner were duly nominated to stand for the election according to the 2nd respondent. Thereafter there was an objection to the nomination of the petitioner. When the final nomination list was displayed another objection was raised against the petitioner, the first objection having been overruled. The 2nd respondent was asked to investigate the said convictions and he thereafter obtained a copy of the judgment (Exhibit E) which showed that the petitioner was convicted of an offence of assault occasioning harm. His case was that he invited the petitioner and told him that the Commission had disqualified him on the basis of the judgment.

The case of the 2nd to the 5th respondents, according to the 3rd respondent, was that there was no election in Ward 3 in Ifedapo Local Government Area because the 1st respondent was the only candidate on the final nomination list for the conduct of the election in the said Ward. The name of the respondent was announced by the Electoral Commissioner for Oyo State, 4th respondent, as being unopposed.

The learned trial Judge in substance in his judgment considered that the main issue raised by the petition was on the jurisdiction of the court to decide questions relating to the disqualification of the petitioner by the Commission. He considered that the question is fundamental to the hearing of the petition. He said that the High Court derived jurisdiction to hear election petitions from both Sections 31 and 32 of the Local Government Elections Decree 1987 hereafter called “Decree No. 37.” He also considered that the plank, on which the 1st respondent rested his case, was on paragraphs 1 and 4 of Schedule 1 and Sections 5 and 7 of the Participation in Politics and Elections (Prohibition) Decree 1987 hereafter called “Decree No. 25.” he therefore found as follows-

“From the evidence before the court, the petitioner was not a public office holder from 1st October, 1960 to 15th January, 1966 nor from 1st October, 1979 to 30th December, 1983. From all indications, he was a self-employed man. He was not found guilty by any Tribunal which in the context of the provision means a tribunal as opposed to court of law. It is clear therefore that the category of the petitioner being a public officer who was convicted of a felony, i.e., assault occasioning harm could not have been contained in the relevant provision of the Decree. This is more so when he had not or could not have been dismissed as contained in paragraph 4 of the Schedule to the Decree. The necessary step taken to disqualify the petitioner who had already been validly nominated must be in strict compliance with Section 3(8) and (9) of Decree No. 25. The evidence so far merely showed that the 3rd to 5th respondents have got hold of Exhibit E to disqualify the petitioner not acting in pursuance of the provision of the Decree. To oust the jurisdiction of this court as provided in Section 7 of the Decree No. 25, the Commission must have clearly shown to have acted under the Decree failing which the ouster clause becomes inapplicable.”

He then assumed jurisdiction as provided under Section 31 of Decree No. 37, and concluded that the petitioner had been “unlawfully excluded” as a candidate for the election thus giving room for his opponent to be returned unopposed. He found that the petitioner had not committed any offence specified in Part 2 of Decree No. 37 to exclude him from contesting the local government election, and thus ordered that the return of the 1st respondent who had been declared unopposed is void and of no effect; and that the petitioner’s nomination is valid, and also that fresh election in the Ward be undertaken.

Dissatisfied, the 1st respondent has appealed to this Court on the following Grounds of Appeal –

“1. The learned trial Judge was not competent by reasons of lack of jurisdiction to entertain the election petition brought against the respondents by the petitioner, and the trial was therefore a nullity.

PARTICULARS OF ERRORS

(a) The petitioner in the instant case challenged his disqualification by the National Electoral Commission from contesting the Local Government Elections held on the 12th day of December, 1987.

(b) The petitioner did not apply for the review of his disqualification either from the National Electoral Commission or the Transition to Civil Rule Tribunal.

(c) The jurisdiction of the High Court is excluded from entertaining the instant case by virtue of Decree No. 25 Participation in Politics and Elections (Prohibition) Decree 1987 and Decree No. 37 Local Government Elections Decree 1987.

2. The decision of the learned trial Judge cannot be supported having regard to the weight of evidence.”

Briefs of arguments were duly exchanged by the parties. The issues for the determination of this appeal as set forth by the 1st respondent, now “the appellant”, read as follows-

“1. Whether having regard to the pleadings filed by all the parties and the evidence led by them the High Court of a State (in this case the learned trial Judge) had jurisdiction to adjudicate upon the disqualification of a person to contest election by the National Electoral Commission in view of the provisions of Decree No. 25 Participation in Politics and Elections (Prohibition) Decree 1987; Decree No. 37 Local Government Elections Decree 1987, Decree No. 1 Constitution (Suspension and Modification) Decree 1984 and Decree No. 13 Federal Military Government (Supremacy and Enforcement of Powers) Decree 1984, and

2. Whether having regard to the pleadings and evidence the petitioner/respondent is eligible to contest Elections in view of the Provisions of Decree No. 25 Participation in Politics and Elections (Prohibition) Decree 1987 and Decree No. 37 Local Government Elections Decree 1987.”

and the petitioner now “the respondent”, having adopted the appellant’s issues for determination, I propose to consider the appeal in terms of those issues as argued by the parties in their briefs.

The argument of the appellant in his brief questioned the finding of the learned trial Judge when he said that since the National Electoral Commission (NEC) did not properly carry out the disqualification exercise, His Lordship’s jurisdiction was not therefore ousted by the provisions of Decrees 25 and 37 of 1987 particularly after the learned trial Judge had rightly made a finding that it was the disqualification of the respondent that deprived him (the appellant) of the opportunity of participating in the local government election.

This, indeed, is the core of this appeal which is challenging the jurisdiction of the High Court to adjudicate upon the case of a person disqualified by the Commission to contest election.

Counsel said that there is overwhelming evidence that it was the Commission that disqualified the respondent from contesting the election, and that the learned trial Judge rightly made such a finding. The question then is according to counsel, whether the High Court had jurisdiction to adjudicate upon the issue of a disqualification of a person by NEC to contest election, citing the case of Madukolu v. Nkemdilim (1962) 1 A.N.L.R. (Part 4) 587 at 595 on the meaning of the expression “jurisdiction.” His argument is that the Constitution (Suspension and Modification) Decree (No.1 of 1984) and the Federal Government (Supremacy and Enforcement of Powers) Decree (No. 13 of 1984), and any other decrees – including Decrees Nos. 25 and 37 of 1987 take precedence over, and are superior to the Constitution of the Federal Republic of Nigeria (the 1979 Constitution), and therefore any legislation inconsistent with any of the decrees aforementioned is null and void to the extent of the inconsistency, relying on the Military Governor of Ondo State v. Victor Adegoke Adewunmi (1988) 3 N.W.L.R. (Part 82) 280 at 306-307.

Counsel further argued that the unlimited jurisdiction conferred on the High Court of a State by Section 236 of the 1979 Constitution had been whittled down by Decree No. 1 of 1984 and other decrees thereafter; and that, accordingly, the jurisdiction of the High Court is unlimited only to the extent that it is not ousted by any decree, citing the case of the Military Governor of Ondo State v Adewunmi (supra) at 298 and Kasikwu Farms Ltd. v Attorney-General of Bendel State (1986) 1 N.W.L.R. (Part 19) 695 at 707.

His main contention is that after the respondent’s disqualification by NEC which is the competent adjudicative body to contest the election, the respondent’s remedy with respect to such disqualification lies with the Transition to Civil Rule Tribunal established by Decree No. 25. A redress and any action before any other body other than the Tribunal is a nullity (Chief P. Agbajo v Attorney-General of the Federal Republic of Nigeria (1986) 2 N.W.L.R (Part 23) at 528). Counsel urged for consideration sections 3(8), 5, 7 of Decree No. 25; and argued that Decree No. 37 had removed any area of conflict or contradiction in that Decree. In addition to Decree No. 25, the former having been assimilated or incorporated into the procedure prescribed in the latter decree, he urged and particularly referred to Section 4(1)(d) and Sections 31 and 34 of Decree No. 37.

The respondent on the other hand argued that the learned trial Judge rightly held that the purpose for which Decree No. 25 was promulgated was to prevent certain categories of persons, who were public servants between the 1st October, 1960 and 15th January, 1966 and 1st October, 1979 to 30 December, 1983 who were found guilty of offences or wrong doings by any Tribunal, Judicial Commission or Administrative Enquiry, from participating in politics or elections. He also supported the judgment of the learned trial Judge when he held that the offences intended in paragraph 1 of Schedule 1 of Decree No. 25, relate only to corruption, mismanagement of public funds and unjust enrichment, as in the preamble to Decree No. 25, and not an offence like an affray or unlawful assault.

He further said that the learned trial Judge was right when he held that paragraph 4 of Schedule 1 of Decree No. 25 covers those persons both in public and private sectors who had already been dismissed from their employment or who can still be so dismissed if the need arises from 1st October to the end of the transition period.

He then submitted that from the evidence before the Court the petitioner was never a “public officer”, as he had always been a self-employed man, and could not have been affected by the provision of Decree No. 25, and to the effect that the respondent not having been found guilty by any Tribunal in the context of Decree No. 25, as opposed to a Court of law like the Chief Magistrates’ Court, the learned trial Judge was right in his finding to that effect.

I might as well in this appeal begin with Section 4(1)(d) of Decree No. 37 which reads –

“4(1) A person shall not be qualified as a candidate to contest any local government election unless –

(a) …………

(b) …………

(c) …………

(d) he is not a person banned or prohibited from participating in politics and election in accordance with the Participation in Politics and Elections (Prohibition) Decree, 1987.”

From the foregoing a person to be eligible to be voted for in terms of the provision if read along with the marginal notes of the Section, must be qualified as a candidate to contest a local government election only if he is, inter alia, not a person banned or prohibited from participating in politics and elections in accordance with the Decree No. 25; although, all that the Decree does was to make provision for the conduct of elections into local government councils on non-party basis, during the period of transition to civil rule as in the programme of the Federal Military Government set out in the Transition to Civil Rule (Political Programme) Decree, 1987 (refer to the preamble to Decree No. 37 of 1987).

By Section 1(1) and (2) of the said Decree No. 25 which read thus-

(1) Notwithstanding the provisions of any other enactment regarding the disqualification of persons from contesting, holding or being appointed to any elective office or post, either in the government or in a political party, the persons and office holders specified in Schedule 1 to this Decree are hereby banned for life from holding any elective office or post, public office, political party, whether elective or otherwise either in the government or in any political party.

(2) The persons and office holders specified in Schedule 2 to this Decree are hereby disqualified from contesting or seeking any public office or post whether elective or otherwise in any government or political party in Nigeria during the transition period; so however that nothing in this Decree shall be construed to affect any present holder of any of the offices stipulated in Schedule 2 to this Decree except he is retired, dismissed or otherwise removed from that office or he resigns or retires from that office.”

every person and office holder mentioned in the provision are banned for life or disqualified from seeking elective office.

The question before the lower court was really as to whether the High Court had jurisdiction to entertain an election petition on the basis of the disqualification of the respondent who had been validly nominated for the election. This is the main issue also before this Court.

The disqualification having been effected by the Commission established under Decree No. 25, there can be no doubt that the Commission has exclusive power to sustain or reject an objection of a person affected by the Decree. It has the power to ban any person or disqualify such person affected and take necessary steps to enforce a declaration to that effect (refer 10 Section 3(8) of Decree No. 25).

By the same Decree any person dissatisfied with a declaration made by the Commission may within 30 days of such declaration refer his dissatisfaction to the “Tribunal” constituted under the Decree for a review of the declaration (refer to Section 5(1) of Decree No. 25). For convenience of reference the provisions read thus-

“3(8) Where the Commission sustains an objection and declares that the person whose nomination, election or appointment is objected to is a person affected by this Decree, it shall declare the person banned or disqualified as the case may be and shall take all necessary steps to enforce the declaration”; and

“5(1) Any person dissatisfied with any declaration made by the Commission under this Decree may within 30 days of such declaration apply to the Tribunal for a review of this declaration.”

Needless to say, the Commission, in exercise of the power, purported to act under the provisions of the Decree. Here it must be borne in mind that the Decree itself declares that the decision of the Tribunal established by the Decree shall be final and binding (refer to Section 6 of the Decree which reads thus)-

“6. In any matter referred to the Tribunal under this Decree, the decision of the Tribunal shall be final and binding, and no other court of law or tribunal shall have jurisdiction to entertain any action by way of declaration or review or the issue of prerogative orders or the equitable remedy of injunction or specific performance or by way of appeal or otherwise in respect of any matter arising out of and pertaining to the provisions of this Decree.”

This provision clearly excludes the jurisdiction of a court of law or tribunal, that is to say, any tribunal other than “Tribunal” established by the Decree, and this includes the Courts of law like the High Court and this Court. Furthermore, to put the ouster of jurisdiction beyond any question the Decree further provides in its Section 7 thus –

“7(1) No suit or legal proceedings shall be instituted in respect of any ban, disqualification or any other matter covered by this Decree in any court or tribunal except as provided under this Decree.

(2) No suit or other legal action shall lie against any person for anything done or purported to be done in pursuance of this Decree.

(3) Notwithstanding the provisions of the Constitution of the Federal Republic of Nigeria 1979 or any other law, any claim, right, declaration or question as to whether any provision of this Decree has been or is being or would be contravened by anything done or purported to be done in pursuance of this Decree shall not be inquired into in any court of law or tribunal other than as provided for in this Decree.

(4) The jurisdiction conferred on the Tribunal by this Decree shall be exercised by it to the exclusion of all other courts of law or tribunals in Nigeria.” (Italics mine)

From my reading of the foregoing provisions there are no ambiguities or inconsistencies in the ouster provisions of the said Sections 6 and 7, such as could be said to leave room for the assumption of jurisdiction by the High Court as respects matters pertaining to the disqualification of any person by the Commission from contesting an election, particularly in view of the underlined words: “anything done or purported to be done in Sub-section (3) of Section 7.

The question whether or not a person has been banned or disqualified as a candidate for election seems to me clearly a matter determinable only by NEC; and the power to review the decision of the Commission having been specially provided for under the Decree, the jurisdiction of the High Court to review or intervene has in my humble view been effectively blocked.

Furthermore, Section 4(1)(d) referred to above having incorporated the provisions of Decree No. 25 into Decree No. 37 the latter Decree can only be properly construed by reference to and applying the former Decree No. 25, and not by treating either of them in isolation.

In view of the foregoing paragraph 3(7) of Decree No. 37 which conferred certain jurisdiction on the High Court and Section 236 of the 1979 Constitution must both be read subject to the said Decrees Nos. 25 and 37. This is so in this case, not only by reason of Section 4(1)(d) of Decree No. 25, but more also by reason of paragraph 34(a)(d) and (2) of Decree No. 37 if read together with the foregoing provisions of the Decree referred to and in their combined effect, in so far as the question is on the jurisdiction of the High Court.

In my humble opinion, until the provisions of Decree No. 25 as incorporated into Decree No. 37 including the procedure for a remedy or review had been exhausted in respect of an election issue before the appropriate channel or body set up by the Decree, it will be inappropriate and wrong in law for any court of law to assume jurisdiction to determine any such matter. I so hold in this case. The High Court certainly lacked jurisdiction to determine the issue.

I now turn to the Second Issue on the eligibility of the respondent to contest election in view of the provisions of Decrees No. 25 and 37. This issue in view of the foregoing cannot properly arise. All the same I propose to discuss it as argued. Here the appellant referred to the view of the learned trial Judge that because NEC failed to act properly in accordance with Decree No. 25 His Lordship could assume jurisdiction by relying on the case of Wilson v Attorney-General of Bendel Stale (1985) 1 N.W.L.R. (Part 4) 572 which is clearly distinguishable.

In that case it was held that the High Court could assume jurisdiction because the act complained of was not carried out by the competent appropriate body. Counsel also referred to Garba v Federal Civil Service Commission (1988) 1 N.W.L.R. (Part 71) at 449. Counsel rightly distinguished that case by saying that in the present case the competent or appropriate authority by law empowered to ban or disqualify any person from contesting election is NEC, and it was agreed by the parties that it was the Commission that disqualified the respondent and the learned trial Judge rightly made a finding to the same effect.

The respondent’s counsel on the other hand submitted that the learned trial Judge held that the respondent had not committed any offence specified in Part 2 of the Decree No. 37 to exclude him from contesting the local government Election. He said that it would be unreasonable to assume that the latter requires only saints to be eligible to be voted for in that case, because the law deliberately specified what class or type of people and what categories of offences would he ineligible to contest elections. Indeed, even saints who wish to contest an elective office could be an affected person unless and until he is cleared by NEC or the Tribunal. The point really is not that Criminal offences or misdemeanours such as affray or assault are excluded from the list of offences necessitating a ban or disqualification, but that any person seeking elective office against whose nomination there has been objection should adopt the procedure laid down for them to be allowed to contest the election and pursue the remedy prescribed.

Counsel to the 2nd to 5th respondents submitted that the intendment of Section 1(1) and Schedule 1 paragraph 1 of Decree No. 25 would be defeated if the word “Tribunal” used in the context of paragraph 1 Schedule 1 is not given a wider interpretation by this Court. My answer to that is that the meaning to be attached to “Tribunal” as defined under the Decree No. 25 is clear and that word cannot be given a wider connotation than that ascribed to it by the Decree. That being the case this case would have been a proper case for a review by that Tribunal. The law in this case provided not only for the grounds of disqualification or for exclusion of persons affected from contesting an election, it also provided for the manner by which the disqualification can be effected, by whom it would be effected, and also how and by whom any disqualification could be reviewed. Above all, it expressly provided for the ouster of the jurisdiction of the courts in clear and unambiguous terms.

I am therefore in no doubt whatsoever that the learned trial Judge indeed acted without or in excess of his jurisdiction in his decision. That being the case, the whole proceeding before the trial Judge is a nullity and void. I hereby so declare.

The grounds of appeal succeed. This appeal is allowed and the judgment of the lower Court is accordingly set aside with costs which I assess in the sum of N250.00 only in favour of the appellant.

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Other Citations: (1989)LCN/0096(CA)

African Continental Bank Limited V. Alhaji Umoru Gwagwada (1989)

LawGlobal-Hub Lead Judgment Report

YEKINNI OLAYIWOLA ADIO, J.C.A. 

The appellant’s claim against the respondent in the lower court was for the sum of N5,377,574.20 being money payable by the respondent to the appellant for money lent by the appellant to the respondent and for credit facilities granted by the appellant, as bankers, to the respondent at his request and for interest. The action was brought under the undefended list. The respondent filed a notice of intention to defend the action and served a copy thereof on the appellant. As a result, the lower court ordered the parties to file pleadings and pleadings were duly filed and exchanged. The appellant filed a Statement of Claim which is at pages 45-46 and the respondent filed a Statement of Defence which is at pages 47-51 of the record of proceedings.

The hearing of the case commenced and, at one stage during the hearing, the appellant’s counsel wanted or applied to tender the copy of the notice of intention to defend the action together with the affidavit and the documents attached to it, through one of its witnesses. The copy of the notice of intention to defend, the affidavit, and the documents attached to it (affidavit) are at pages 1, 2-5, and 6-42 respectively. The appellant wanted to tender it as an admission (by the respondent). An objection was raised to the admissibility of the documents (notice of intention to defend, affidavit and the documents attached to it) by the learned counsel for the respondent and they were rejected by the lower court on the ground that as the documents included an affidavit the relevant provisions of Section 34(1) of the Evidence Act had to be complied with. Dissatisfied with ruling of the lower court, the appellant has appealed to this court. The Notice of Appeal and the ground of appeal are at pages 65 and 66 of the record of proceedings. The ground of appeal and its particulars are as follows:-
“The learned trial Judge misdirected himself and erred in law by holding that Section 34 of the Evidence Act, precluded the plaintiff/appellant (from) tendering the rejected documents through their witness, P.W.1 – John Irukwu.
PARTICULARS OF MISDIRECTION
(a) The defendant/respondent is not a witness within the meaning of Section 34(1) of the Evidence Act.
(b) The learned trial Judge misconstructed (sic) the purport and effect of Section 34 of the Evidence Act.”

The parties, in accordance with the Rules of this court, filed and exchanged briefs. The appellant’s counsel filed appellant’s brief and the respondent’s counsel filed respondent’s brief. The appellant’s counsel filed a Reply brief for the appellant. There was only one issue framed for determination in the appellant’s brief and there was also one issue framed for determination in the respondent’s brief. I have, for reasons given elsewhere in this judgment, expressed the view that the affidavit in support of the notice of intention to defend, to which some other documents were attached, was necessary for the purpose for which the appellant wanted to tender the documents which the lower court rejected and that it was not a mere coincidence that the said affidavit was attached to the notice of intention to defend the action in the lower court.

For this reason, the issue formulated for determination in the respondent’s brief is preferable for the purpose of the determination of this appeal. The aforesaid issue for determination is as follows:-
“Whether the affidavit together with the annexures thereto sought to be tendered by the plaintiff at the lower court constitute ‘evidence in previous proceeding’ within the meaning of that expression in Section 34(1) of the Evidence Act and if the answer is in the affirmative whether the conditions prescribed by that Section were complied with to render the evidence admissible, in law.”

It was stated at page 3 of the appellant’s brief, that what the plaintiff wanted to tender was the copy of the notice of intention to defend the action together with the attachments and not necessarily the affidavit and that it was by mere coincidence that the notice had an affidavit as one of its attachments. The submission in the appellant’s brief and by its learned counsel was that the appellant was free, in law, to make use in any proceeding any document filed by the respondent in court which was served on the appellant. Eyifomi v. Ismail (1987) 2 N.W.L.R. (Pt.57) 459; Pritchard v. Bagshawe (1851) 138 E.R. 551; Richard v. Morgan (1853) 122 E.R. 600; Seismograph Service (Nig.) Ltd. v. Eyuafe (1976) 9-10 S.C. 135 at 146; Iga & Ors. v. Amakiri & Ors. (1976) 11 S.C. 1; Sanyaolu v. Coker (1983) 3 S.C. 124; and El-Khalil v. Oredein (1985) 3 N.W.L.R. (Pt.12) 37; at p.578 were cited.

The submission in the respondent’s brief and the oral submission of his learned counsel was that the affidavit together with the annexures sought to be tendered by the appellant constituted evidence given in an earlier stage of judicial proceedings and that by virtue of Section 34(1) of the Evidence Act they were inadmissible through the appellant’s witness. Practically all the cases cited by the appellant’s counsel were also cited in the brief of the respondent and/or by his learned counsel in addition to Ajao v. Owoseni (1986) 5 N. W.L. R. (Pt.45) 578 at 584 and Ajide v. Kelani (1985) 3 N.W.L.R. (Pt.12) 248.

It has to be pointed out straightaway that it is not correct to say that what the appellant wanted to tender was the copy of notice of intention to defend with attachments and not necessarily the affidavit in support of the notice and that it was by mere coincidence that the affidavit was one of the attachments to the notice. Indeed, the Reply brief of the appellant made it clear that the notice of intention to defend together with the documents attached to the affidavit alone would be meaningless and would not serve the purpose of the appellant. After setting out, in paragraph 1.6 at page 2 of the Reply brief, paragraph 17 of the Statement of Claim in which it was averred that the respondent opened Current Accounts Nos. 1372 arid 12540 and paragraph 16 of the Statement of Defence in which the respondent denied that he opened the said accounts, the learned counsel for the appellant stated, inter alia, in the Reply brief as follows:
“In effect the respondent categorically denied ever opening any accounts with the appellant numbered 1372 and 12540. Nevertheless, in the affidavit supporting his notice of intention to defend, the respondent himself deposed:
“That subsequent to the said Exhibit ‘A’, I have made various lodgments into my various accounts with the defendant Bank far in excess of the sum of N100,000 facilities. A breakdown of some of the said lodgments is as follows:-
The respondent then went on to give details of 36 lodgments, all of which were supported by exhibited copies of bank pay-in slip. Of these 36 lodgments, 21 were made into account number 1372, and 9 into account number 12540. How could the respondent have made lodgments into accounts which, according to him he……….never at any time proposed or authorised the opening of the accounts (See pages 3-4 of the Record of Proceedings).
In the light of these, the notice of intention to defend, its affidavit in support, and attached exhibits cannot be anything but admissions made by the respondent against his own interest; and the appellant has every right in law to seek their adduction as such.”

Apart from the relevant portion of the record of proceedings (page 8 of the record) which clearly showed that the documents which the learned counsel for the appellant tendered included the said affidavit, the foregoing portion of the Reply brief quoted above showed that the admission allegedly made by the respondent upon which the appellant would want to rely, for the purpose of contending that the respondent was estopped from denying that he opened or authorised the opening of current accounts numbers 1372 and 12540, could not be established or proved without the fact deposed to in paragraph 6 of the affidavit in support of the notice of intention to defend, which fact has also been quoted above. It was therefore, not by mere coincidence that the said affidavit was included in the documents attached to the notice of intention to defend which the appellants tendered in the lower court. The appellant needed the admission of the affidavit for the purpose of establishing the alleged admissions of the respondent.

What the respondent intended paragraph 6 of his affidavit (quoted above) to show was the fact that he had made various lodgments into his various accounts with the appellant far in excess of the sum of N100,000 facilities. Certainly, the portion of the Reply brief of the appellant, which I have quoted above, showed that the fact which the respondent used the affidavit, particularly paragraph 6 thereof, to establish, was not the same fact that the appellant wanted to use paragraph 6 of the said affidavit to establish. What the appellant wanted to use the alleged admission in paragraph 6 of the respondent’s affidavit to establish was that the respondent was estopped from denying that he opened or authorised the opening of current accounts numbers 1372 and 12540. In the circumstance Pritchard’s case and Richard’s case (supra) cited by the learned counsel for the appellant could not help the appellant’s case because the principle established in those cases is that affidavits or documents which a party has expressly caused to be made or used as true, in a judicial proceeding, for the purpose of proving a particular fact, are evidence against him in subsequent proceedings to prove the same fact, even on behalf of strangers. The principle was applied by this court in Eyifomi’s case (supra) in which Pritchard’s case and Richard’s case (supra) were cited with approval.

Assuming, for the purpose of argument, that the affidavit in question together with the documents attached thereto constituted evidence in a previous suit, the question is what are the legal principles governing or applying to the admission of such evidence in subsequent judicial proceeding? The Supreme Court in Ajide’s case (supra) reiterated the authorities and categorised them. Bello, J.S.C. (as he then was) stated, inter alia, at p.260, as follows:-
“The authorities may be categorised as follows:-
(1) Under section 34 of the Evidence Act, evidence given by a witness in a previous judicial proceeding, whether the witness was a party or not to the previous proceeding, is admissible in a subsequent judicial proceeding to prove the truth of the facts it states when the conditions specified by the section have been satisfied: Nahman v. Odutola (1953) 14 W.A.C.A. 381 at page 384 and Sanyaolu v. Coker (1983) 3 S.C 124 at page 155. Section 34 is not in issue in this appeal.
(2) Though admissions are not conclusive proof of the matters admitted, an admission of any fact in issue or relevant fact by a party or his agent, whether the admission was made in a previous judicial proceeding or not, is admissible in judicial proceeding against or on behalf of the maker under sections 19 to 26 inclusive of the Evidence Act: Joe Iga & Ors. v. Chief Amakiri (1976) 11 S.C. 1 at page 12 and Ojeigbe & Ors. v. Okwaranya & Ors. (1962) 1 All N.L.R. (Part 4) 605 at page 610.
It must be noted that if an admission is relied on as an estoppel, then it must be pleaded; K. Chellaram & Sons v. G. B. Olivant Ltd. (1944) 10 W.A.CA. 77; Ajayi v. Briscoe (Nig.) Ltd. (1964) 3 All N.L.R. 556 at pages 559-560 and Chukwura v. Ofachebe (1972) 1 All N.L.R. (Part 2) 514.
(3) Under section 198 of the Evidence Act evidence given by a witness in a previous judicial proceeding is admissible in a subsequent judicial proceeding to discredit the witness provided that the condition prescribed by the section have been satisfied: Nahman v. Odutola (supra) and Alade v. Aborishade (supra). ”
The appellant did not adopt the procedure prescribed under section 198 of the Evidence Act mentioned as the third category in the statement of Bello, J.S.C. (as he then was) quoted above because the appellant was not sure whether the respondent would testify during the proceedings in the case in the lower court. Evidence given in previous proceedings by a witness who is called in the present case can be used to impeach his credit under sections 207 and 209 of the Evidence Act but the evidence in the previous proceedings does not become evidence in the present case. If the two testimonies are inconsistent it shows that the witness is not credible. Olujinle’s case (supra). Having regard to the fear of the appellant that it was not sure whether the respondent would testify during the hearing of the case in the lower court, the foregoing procedure would not appear to be suitable from the point of view of the appellant. What one can say, however, is that the question whether the respondent would testify on his own behalf during the hearing of the case to enable the appellant to take advantage of the provisions of sections 198, 207 and 209 of the Evidence Act would not have become very important if it was realised that a plaintiff may call a defendant in the same case as his (plaintiffs) witness. See Obolo v. Aluko (1976) 3 S.C. 105. If a defendant called as a witness by the plaintiff, in the same case, without reasonable cause, becomes hostile as a witness, the law can take adequate care of that sort of situation.
As has been stated above, an admission of any fact in issue or relevant fact by a party, whether the admission was made in a judicial proceeding or not is admissible against the maker under sections 19-26 inclusive of the Evidence Act. Joe Iga’s case (supra). However, if an admission is relied upon as an estoppel, it must be pleaded. In this case, the affidavit and the documents attached to it were tendered not for the purpose of discrediting the respondent under section 198 of the Evidence Act or to impeach his credit under sections 207 and 209 of the Act but for the purpose of stopping him to assert that he did not at any time propose or authorise the opening of current accounts number 1372 and 12540.
In the circumstance, the appellant had invoked estoppel and, for that reason, estoppel ought to have been pleaded in the Statement of Claim otherwise the documents (affidavit and the documents attached to it) would not be admissible. See Ajide’s case (supra) at pp.260-262. There was no averment in the appellant’s Statement of Claim relating to the alleged admission or to the said affidavit and the documents attached to it.
With reference to the application of section 34(1) of the Evidence Act, as what the appellant wanted to do at the lower court did not fall within the second or the third category of evidence in previous judicial proceeding which is admissible in subsequent judicial proceeding mentioned above by Bello, J.S.C. (as he then was) and as sections 207 and 209 of the Evidence Act and the principle in Pritchard’s case and Richard’s case (supra) did not apply, the only conceivable provision of the Evidence Act, of any real significance, which comes to mind, in the circumstances of this case, is the provision of section 34(1) of the Act. I have no doubt in my mind that the affidavit in question together with the documents attached thereto constituted evidence given by a witness in a previous judicial proceeding which, subject to certain conditions, is admissible in subsequent judicial proceeding. Even in that case, the contention of the learned counsel for the respondent, with which I agree, was that the provisions of section 34(1) had not been complied with and, for that reason, the affidavit and the documents attached to it were not admissible. The answer to the question raised in the issue for determination above is that the affidavit together with the annexures thereto sought to be tendered in the lower court constituted “evidence given by a witness in a previous judicial proceeding” within the meaning of that expression in section 34(1) of the Evidence Act. The aforesaid evidence was not legally admissible as the conditions prescribed in the section were not complied with.

The appeal does not succeed. The ruling of the lower court rejecting the affidavit and the documents attached to it is affirmed. Case is remitted to the lower court for the hearing and determination of the case. I award N150 costs to the respondent.

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Other Citations: (1989)LCN/0095(CA)

Mrs. H. B. Adejumo V. David Hughes and Company Limited (1989)

LawGlobal-Hub Lead Judgment Report

AKPATA, J.C.A.

The question of a Judge taking suo motu a legal point and basing his judgment on the legal point so taken without calling on counsel to address him on it crops up in this appeal. One of the main issues for determination, however, is whether a tenant for a term of years who holds over with the consent of the landlord after the expiration of the lease and continues to pay rent at the yearly rate under the expired lease agreement should be regarded as a yearly tenant.

The appellant in this appeal, Mrs. H. B. Adejumo, was the plaintiff in the High Court. She is the owner of the premises situate at No. 2 Aromire Avenue, Ikeja. By a lease agreement dated October, 1982, she demised to the defendant, David Hughes and Company Ltd., the said premises for a term of two years at an annual rent of N17,000.00 from the 1st of November, 1981, to 31st October, 1983, paying in advance the total rent of N34,000.00.

The defendant paid the two years rent before the lease was executed and the payment was acknowledged in the lease agreement.

It was provided in the lease that if at the expiration of the term of the lease, the lessee shall be desirous of continuing in possession of the demised premises for a further term of two years and shall give to the lessor at least three months notice in writing, the lessor shall grant at the expiry of the lease a new lease of the premises for a further term of two years at an amount of rent to be mutually agreed.

Although a formal renewal of the lease was not made, the defendant remained in possession with the tacit consent of the plaintiff who continued to collect every year in “bits and pieces” invariably in advance, a total sum of N17,000.00 per annum as rent up to October, 1987. In effect, the total sum of N34,000.00 for two years was not paid in advance from November, 1983.

By writ of summons dated 15th December, 1987, filed along with a statement of claim of 38 paragraphs, the plaintiff initiated an action against the defendant claiming:

(a) Immediate possession of the house and premises at No.2 Aromire Avenue, Ikeja, Lagos. On the following grounds:

(1) Personal use by her and her daughter who is a legal practitioner.

(2) Substantial repairs.

(b) The sum of N15,972.74 being damages for breach of repairing covenant.

(c) An order that the defendant signs the draft tenancy agreements it refused to sign.

(d) An order that the defendant pay all electricity and telephone bills and other rates and taxes due on the premises as at 31st October, 1987.

(e) An order that the defendant pay mesne profit at the rate of N2,000.00 per month viz, N24,000 per annum for loss of use and occupation from 1st November, 1987 to the date of Judgment and at same rate from the date of Judgment to when possession is given up.

A statement of defence of 35 paragraphs was filed on behalf of the defendant. In it the defendant contended that the plaintiff’s action was vexatious and highly scandalous and that it was an abuse of the process of the court and that she was not entitled as claimed or at all and that the action should be dismissed with substantial costs.

The plaintiff and three witnesses testified in support of her claim. Only Davidson Ekundayo Hughes, the Managing Director of the defendant company testified for the defence.

It was the case for the plaintiff that at the expiration of the tenancy agreement at the end of October, 1983, the defendant approached her for the renewal of the agreement for a period of another two years starting from November, 1983, to 31st October, 1985 retaining all the terms and conditions in the first tenancy agreement, Exhibit P1. Although the defendant said that he would instruct its solicitor to prepare the agreement, no such agreement was prepared. A year’s rent was paid by the defendant instalmentally but in advance for the period 1983- 1984. It also paid the rent for 1984 – 1985 instalmentally and in advance.

At the end of October, 1985, the defendant also approached her for another tenancy from 1/11/85 to 31/10/87 also retaining all the terms and conditions of the agreement, at N17,000.00 for the period 1985/86 and N20,000.00 for the period 1986/87. According to the plaintiff the defendant also said it would instruct its solicitor to prepare an agreement. When none was prepared the plaintiff got her solicitor to prepare the draft agreement, Exhibit “P2” with a forwarding letter dated 14/5/87. The plaintiff agreed under cross-examination that the defendant did not make the request for renewal of the tenancy at the end of 1985 in writing. It however paid the rent for 1985/86.

The defendant wrote the letter, Exhibit “P3”, dated 13/7/87 to the plaintiff referring to their discussion of the same date and “to confirm our decision to continue to lease your property for the next two years with effect from November 1, 1987, at the original rate of N17,000.00….all taxes inclusive.” The defendant enclosed a cheque for N2,000.00 as first instalment of payment and went on to say that “the current lease agreement will be renewed by our solicitor retaining all previous conditions.”

The plaintiff in her reply dated 21/7/87, Exhibit “P4”, expressed her shock that the defendant ignored the “previous agreement as to the rent of N20,000…paid by you for the year 1986/87” and rejected the conditions stated in Exhibit “P3.” She went on to say:

“however, if you are willing to exercise your option for renewal of the tenancy for the next 2(two) years it would be on the terms and conditions of the Current Tenancy Year and all payments in full being made in advance 3 months to the expiration of the Current Tenancy Year which is 31st October, 1987.”

Exhibit “P4” was followed by the plaintiff’s letter Exhibit “P5” dated 24/7/87 where she said:

“Further to our discussion on 23rd July, 1987, in respect of the above subject matter at which we agreed on the rent of N20,000.00 per annum for the years 1987 – 1989.

Please find enclosed your UBA cheque No.HO56703 for the sum of N2,000 since it will be contrary to the terms and conditions stated in my letter dated 21st July, 1987.

I would therefore expect a cheque for at least a year’s rent 3 months to the commencement of the new tenancy year.”

The defendant replied thus in Exhibit “P6” dated 27/7/87.

“This is to acknowledge’ the receipt of our own cheque No.HO56703 for the sum of N2,000.00 (Two thousand Naira only) which you returned with your letter dated July 24, 1987. It is still our intention to continue to lease your property which situate at No. 2 Aromire Avenue, Ikeja, for the next two(2) years with effect from November 1, 1987, at the original rate of N17,000.00 (Seventeen thousand Naira only) all taxes inclusive. We have not agreed to increase the rent to N20,000.00 (Twenty thousand naira) as stated in your letter under reference.”

On receipt of Exhibit “P6” the plaintiff instructed her solicitor to write to the defendant that she would no longer renew the tenancy. The solicitor wrote the letter Exhibit “P7” dated 6/8/87 accordingly, and intimated the defendant that at the appropriate time, it would be served the necessary notices towards its eviction and that a writ of summons would be issued for the recovery of the premises and for breach of the covenant to keep the premises in good and tenantable repair.

On the instruction of the plaintiff her solicitor also forwarded two letters to the defendant. The first, Exhibit “P8” dated 16/9/87 reminded the defendant of the, terms and conditions of the tenancy, amongst other things, to maintain the grounds and interior of the premises in good and tenantable repair. The defendant was requested to commence work on the premises and warned of the consequences of failure to repair. The second letter, Exhibit “P9” dated 17/9/87 requested the defendant to make available for inspection on 9/10/87 “all your past receipts for payment of tenement, water and N.E.P.A. Bills and Economic Recovery Fund Receipts.”

On 9/10/87, the plaintiff in company of her daughter, Sijuade Adejumo (P.W.2) who is a lawyer by profession, her lawyer and Mr. Adeniran, the defendant’s accountant, inspected the premises and observed and took notes of the state of disrepair. She then instructed her solicitor to write to the defendant to inform it of the condition of the premises and to effect repairs.

The solicitor wrote the letter, Exhibit “P10” dated 12/10/87 accordingly. The plaintiff invited Sylvester Mbamba, P.W.1, a building draughtsman and Works Supervisor to Mackonell Company Limited to the premises to assess the cost of repairs. He did so and prepared an estimate Exhibit “P11” showing that the total sum for the repairs would be N15,972.74.

The plaintiff then wrote her solicitor the letter Exhibit “P12” dated 5/11/87 instructing him to issue the necessary statutory notices and all other processes towards the recovery of possession of the property. The solicitor prepared Exhibit “P13” dated 10/11/87, the “Notice to tenant of owner’s intention to apply to recover possession” which was served by the plaintiff herself on the Managing Director of the defendant company personally on 11/11/87.

It was also the case for the plaintiff that there was incumbrance on the property in that it was used to secure a loan from the Co-operative Bank Limited for Financial Times Limited (presumably the plaintiff’s company). Judgment was entered for the bank in 1979 for the loan as evidenced by the enrolment order Exhibit “P14.” The plaintiff subsequently came to an agreement with the bank as shown by the letters Exhibits “P15” and “P16” in order that the property might not be sold. She was to liquidate the debt by annual instalmental payment of between N10,000.00 – N12,000.00. She relied on the rent from the property to offset the judgment debt in favour of the bank.

The plaintiff further testified to the effect that the Managing Director of the defendant company owned two duplex buildings at Ikeja G.R.A. and that the defendant company was the owner of a parcel of land at Ojodu, Ikeja. One of the grounds for seeking possession was that the plaintiff needed the premises for her personal use and the use of her daughter (P.W.2), a legal practitioner, as her office.

It was the case of the defence that at the expiration of Exhibit “P1”, the defendant approached the plaintiff when it became necessary for it to remain in the premises. She was agreeable to its request to stay and pay the rent of N17,000.00 per annum. The defendant has since then been paying rent annually in advance, that is, to cover the period 1st November every year to 31st October of the following year.

There were occasions when the plaintiff asked for rent well before the date due for it and the defendant obliged. For instance, in Exhibit “D1”, dated 26/6/86, she requested thus:

“I would be grateful if you could let me have an additional sum of N3,000.00 out of the balance. The rest could be paid much later say by October. Sorry for any inconveniences this might cause you. Thank you for your co-operation.”

The N3,000.00 was paid to her the following day.

The defendant used the premises as an office which is well taken care of and is in good tenantable state. The defendant proposed to build its own office at Ojodu and move there. It did not agree at any time to pay N20,000.00 per annum. D.W.1, the Managing Director of the defendant company, explained under cross-examination that “from 1986 to 1987 we paid N20,000.00 made up of N17,000.00 as rent and N3,000.00 with-holding tax. Between 1985 and 1986 we paid with-holding tax of N2,125.00. In 1984 also, we paid N17,000.00 including with-holding tax.”

In a reserved judgment dated 12/6/88, the learned trial Judge held that the plaintiff wrongly initiated the action with Form No. 1 required by the High Court (Civil Procedures) Rules 1972, instead of applying Form F as demanded by Section 10(1) of the Recovery of Premises Law, Cap. 118, Vol. 6 of the Laws of Lagos State.

The question of the use of the wrong Form apart, the learned trial Judge was of the view that as the defendant did not exercise the option for renewal as clearly stated in Clause 3 of Exhibit “P1”, the terms created by it was extinguished and the defendant therefore became a tenant from year to year.

Being a tenant from year to year, to terminate the tenancy, the defendant must be served half a year’s notice in accordance with Section 8(1)(d) of the Recovery of Premises Law.

The learned trial Judge held that the defendant was not in arrears of rent as stated by the plaintiff and that on the contrary the “evidence pointed conclusively to the fact that it was the plaintiff who when in need of fund used to ask for rent before due date. And the defendant always obliged her.”

He also rejected the plaintiff’s evidence that No. 2, Aromire Avenue her property, was used as collateral for a loan. He concluded that her motive “was to whip-up emotion and sentiment.”

The learned trial Judge also expressed the view that in an action for recovery of possession, plaintiff is not allowed to join other claims in the writ. He however held that the defendant was not in breach of any covenant to repair and that the claim of the plaintiff was speculative.

The learned trial Judge also came to the conclusion that the proposed tenancy agreement, Exhibit “P2” which the plaintiff would like the defendant to sign was an after-thought and that it was “specially manufactured for this case.” Besides, said the learned trial Judge, no law empowers the court to force a defendant to sign a tenancy agreement.

On the question of the defendant being compelled to pay all electricity and telephone bills and other rates and taxes due on the premises, he was satisfied that it was not the business of the plaintiff because the suppliers of the services would withdraw their services to the defendant if it refused to pay them.

Lastly, on the question of mesne profit, the learned trial Judge concluded that as the plaintiff failed to obtain possession, the claim for mesne profit did not arise. The entire suit was dismissed. Each party was however asked to bear her or its own costs.

By her notice of appeal dated 23/6/88. a total of 18 grounds of appeal were filed, some extremely lengthy and supported by copious particulars. I do not consider it necessary to reproduce any of them. Grounds (A), (B) and (C) relate to the question of the form of the writ applied in initiating the action. Grounds (D), (E), (F) and (G) are in respect of the inference drawn by the learned trial Judge that Exhibit “P1” had terminated and that a yearly tenancy was operative. Ground (H) is in respect of the seven days notice as opposed to six months notice. Ground (1) relates to the trial Judge believing the evidence of the defendant where-ever it was in conflict with the evidence of the plaintiff. Ground (J) questions the finding that the plaintiff stated that the defendant was in arrears of rent when in fact there was no such assertion by the plaintiff.

Grounds (K) – (L) touched on the question whether the property was used as a collateral for a loan. Grounds (M) and (N) deal with joinder of claims. Ground (Q) relates to the finding that Exhibit “P2” was an afterthought.

Ground (P) is in respect of payment of N.E.P.A. and other bills. Ground (Q) relates to the question of the refusal of the learned trial Judge to allow the claim for mesne profit.

In his brief of argument, learned counsel for the appellant, Mr. I. O. Iluyomade, formulated 20 issues for determination in the appeal. As in the grounds of appeal, some of the issues are tied up with other issues. I do not intend to go through the exercise of narrowing the issues formulated by learned counsel for the appellant particularly as learned counsel for the respondent has made a fairly good job of them.

The 4 issues succinctly formulated in the respondent’s brief by and large cover the grounds of appeal. It may, however, be necessary for me to refer to one or two of the issues framed by learned counsel for the appellant which are not adequately covered by the issues framed by learned counsel for the respondent.

The four issues framed by the respondent read:

1. “Whether the learned trial Judge was right to have held suo motu, in disposing of this action for non-compliance with S.10(1) of the Recovery of Premises Law, Laws of Lagos State (Cap. 118) that the action not being properly constituted lacked jurisdiction. Whether the learned trial Judge placed the correct construction on Clause 3 of Ex. P1.
2. Whether the learned trial Judge was right in holding that there was a tenancy from year to year as from 1st November, 1983.
3. Whether the learned trial Judge correctly directed himself as to the onus of proof and the relevant evidence having regard to the pleadings and evidence before the Court.”

On the first issue, it is patently clear that at no stage of the proceedings, including the address of counsel for the respondent, did the respondent raise as part of his defence the failure of the appellant to initiate the action with form “F” in accordance with Section 10(1) of the Recovery of Premises Law. It is startling that the learned trial Judge based his decision partly on this point of Law which he raised suo motu. It must have come to the appellant and his counsel like a bolt from the blues as the learned trial Judge read his judgment. A court ought not to give a decision on an issue which was either not raised or canvassed, or of which counsel were not given any opportunity of being heard. See Ogiamien v. Ogiamien (1967) 1 All N.L.R. 191; Animashawun v Osuma (1972) 4S.C. 200 and Yusuff v.N.T.C. Ltd. (1977) 6 S.C. 39).

The learned trial Judge said that he was not unaware of the provision of Section 32 of the Interpretation Act, 1964, which states:

“Where a form is prescribed by an enactment, a form which differs from the prescribed form shall not be invalid for the purposes of the enactment by reason only of the difference if the difference is not in a material particular and is not calculated to mislead.”

While learned trial Judge held the view that “the form used in Form 1 is quite different in more than one material particular that it cannot be saved by this section”, he however omitted to state how the use of Form 1 was “calculated to mislead.”

The learned trial Judge then went on to state that when a statute has laid down any procedure, rule or practice as in Section 10 of the Recovery of Premises Law, the court has no jurisdiction unless they are followed. He drew support from Moore v.Tayee (1934) 2 W.A.C.A. 43 at page 45 where Lord Atkin said:

“It is quite true that their Lordships, as every other Court, attempt to do substantial justice and to avoid technicalities; but their Lordships, like any other Court, are bound by the statute law, and if the statute law says there shall be no jurisdiction in a certain event, and that event has occurred, then it is impossible for their Lordships or for any other Court to have jurisdiction.”

In my view the dictum of Lord Atkin is not applicable to this case. The question in Moore v Tayee was whether or not the Provincial Commissioner had jurisdiction to entertain at all appeal from the Native Tribunal. It is elementary that parties cannot by consent or otherwise, vest in a court the jurisdiction it does not have. This is quite different from an enactment prescribing a form for commencing an action and another form is erroneously applied.

The authorities cited by Mr Davies, learned counsel for the respondent, which relate to question of jurisdiction are inapplicable to this case. Section 22 of the Interpretation Act, 1964, which is a statutory provision clearly states that the form used “shall not be invalid for purposes of the enactment by reason of the difference.”

It is trite that where a wrong procedure has been used in commencing an action and was not objected to by the opposite party, the proceedings based on it will be valid. As stated by the Supreme Court in the case of Adebayo v. Johnson (1969) 1 All N.L.R. 176 at page 190, cited by learned counsel for the appellant, where a party failed to challenge the correctness of the procedure at the commencement of the proceedings, “the adoption of a wrong procedure will be no more than an irregularity and would not render the entire proceedings a nullity.”

In certain cases even statutory provisions can be waived. This was made clear by Eso, J.S.C., in the case of Ariori & Ors v Elemo & Ors. (1983) 1 S.C. 13 at pages 50 – 51., where he said:

“A beneficiary under a statute should have full competence to waive those rights once the rights are solely for his benefit. The only exception I can think of is where the statute itself forbids waiver of the statutory provisions.”

Section 31(1) of the Recovery of Premises Law states that:

“Subject to the express provisions, if in any of the rules, the forms contained in the schedule may, in accordance with any instructions contained in the said forms, and that such variations as the circumstances of the particular case may require, be used in the cases to which they apply, and, when so used, shall be good and sufficient in law.” (Italics mine)

This Section does not specifically or by implication exclude the use of other forms. All it does is to validate the use of the forms in the schedule, including form F. Therefore, from whatever angle one approaches the issue, which the

learned trial Judge introduced suo motu, one gets to the conclusion that he was wrong to have come to his decision that the use of Form 1 by the appellant in commencing the action rendered the action useless.

Although the learned trial Judge said that the error in so doing was enough to dispose of the suit, he however went on, and rightly so, to consider other issues particularly “whether the defendant is a tenant from year to year or tenant for a two year term certain.” He held that it was a tenant from year to year and therefore required six months notice to get it to quit the premises.

Learned counsel for the appellant drew attention to the fact that Exhibit “P1” contained option for renewal clause to be exercised by the tenant in writing at least three months to the expiration of the term thereby created. The appellant gave evidence that at the expiration of the term created by Exhibit “P1”, the respondent approached her to exercise the option to renew for two years from 1st of November, 1983 to 31st October, 1985. According to learned counsel, the respondent also gave evidence that it approached the appellant for the exercise of the option for one year. The learned trial Judge found that the defendant did not exercise the option because of non-compliance with Exhibit “P1” which stated that the exercise should be in writing.

It is not correct to say that the respondent approached the appellant for the exercise of the option in Exhibit 1. All that D. W.1 said was that “At the expiration of Exhibit “P1″, we approached the plaintiff and discovered (sic) that we would like to stay in the premises. She was agreeable to our request for one year at the rent of N17,000.00 per annum.”

Learned counsel argued that by the respondent paying advance rent of N5,000.00 it is deemed by its conduct to have waived the strict provision of Exhibit “P1” that the option should be in writing. Learned counsel cited Okongwu v The State (1986) 5 N.W.L.R. (Pt.44) 721 at 749; Ariori & Ors v. Elemo & Ors. (1983) 1 S.C 13 at 18 and Ezomo v Oyakhire (1985) 1 N.W.L.R. (Pt.2) 195 at 196.

Apart from the fact that there was no option to renew in writing, the tenancy was on a yearly basis. The defendant also paid only a year’s rent in advance. Therefore, if it can be said that by defendant’s conduct it waived the strict provision of Exhibit “P1” that the option should be in writing, which provision may be said to be for the benefit of the defendant, there was no waiver as the term of years and the amount to be paid in advance.

Learned counsel also relied on Exhibit “P2” to prop up the case for the appellant. Exhibit “P2” is the draft agreement dated 14/5/87which the appellant claimed was prepared by her solicitor and that it restored the strict terms contained in Exhibit “Pl.” In my view, learned counsel lost sight of the fact that the learned trial Judge described Exhibit “P2” as “after thought” and that it was “specially manufactured for this case.” The trial Judge obviously believed P.W.1 who said that he had not seen Exhibit “P2” at any time before he testified.

It is true that in Exhibit “P3” dated 13/7/87, the respondent talked of “our decision to continue to lease your property for the next two years with effect from November 1, 1987, at the original rate of N17,000.00… ”

This was obviously an attempt to enter into a formal new agreement and not an exercise of the option created by Exhibit “P1” which terminated on 31st October, 1983. As stated by the learned author of Woodfall on Landlord and Tenant, Vol. 1. 27th Edition, paragraph 653 at page 271:

“Where a tenant for a term of year, holds over after the expiration of his lease, he becomes a tenant on sufferance; but when he pays, or expressly agrees to pay, any subsequent rent, at the previous yearly rate, a new tenancy from year to year may thereby be created upon the same terms and conditions as those contained in the expired lease, so far as the same are applicable to and not inconsistent with a yearly tenancy. This, however, is a matter of evidence rather than of law, the question being what may fairly be inferred as the intention of the parties.”

It is also stated in Halsbury’s Law of England, 4th Edition, Vol 27, paragraph 113, page 92, cited by Mr. Davies, that:

“A tenant who wishes to exercise an option to renew must conform with the condition in the lease as to its exercise, and those conditions will be strictly construed.”

When Exhibit “P1” was executed, the respondent paid two years rent in advance. At the expiration of that lease, the respondent held over with the consent of the appellant and paid thereafter only the one year’s rent in advance. In Exhibit “D1” dated 26/6/86, the appellant begged to be paid additional sum of N3,000.00 out of the balance of one year’s rent in advance. If it was the belief of the parties or even that of the appellant alone that there was a renewal of Exhibit “P1”, she would no doubt have insisted on two year’s rent being paid in advance from November, 1983. In the circumstance I have not the slightest hesitation to saying that there was a tenancy from year to year as from 1st November, 1983.

One of the issues framed by learned counsel for the appellant was whether there was sufficient evidence from the plaintiff in rebuttal of the presumption of yearly tenancy in favour of the defendant. The position is that not only was there no such credible evidence from the plaintiff but also on the showing of the plaintiff it is quite clear that the defendant was a yearly tenant.

Another issue formulated by learned counsel is “what is the effect of a decision based on an improper evaluation of evidence.’” In my view, there was no improper evaluation of evidence that should necessitate this issue framed by learned counsel. There is no doubt that the learned trial Judge was wrong when he said that the plaintiff asserted that the respondent was in arrears of rent. She never said so. This holding of the learned trial Judge is neither here nor there. By Section 8(1)(d) of the Recovery of Premises Law, the defendant ought to have been served six months notice. Having not done so, the action for possession was bound to fail. In my view, all the other claims, which no doubt are incidental to the claim for possession, were also bound to fail.

In his judgment, the learned trial Judge held that in an action for recovery of possession, the plaintiff is not allowed to join other claims in the writ. He relied on the case of Oku v Awanah (1961) 1 All N.L.R. 107 where De Lestang, C.J., held that “a claim for general damages cannot be properly joined with a claim for possession, arrears of rent and mesne profit under the Recovery of Premises Ordinance. ‘ The learned Chief Justice was saying that a special procedure for the recovery of premises although allows a claim for rent and mesne profit, it does not contemplate the joinder of a claim for general damages. However, Order 15 rule 2 of the Lagos State High Court (Civil procedure) Rules states in part:

2. “No cause of action save an action for declaration of title shall, unless by leave of the Court or a Judge in Chambers, be joined with an action for the recovery of land except claims in respect of mesne profits or arrears of rent in respect of the premises claimed, Or any part thereof, and damages for breach of any contract under which the same or any part thereof are held, or for any wrong or injury to the premises claimed, and except also claims for payment of principal money or interest secured by or for any other relief in respect of a mortgage or charge of such land.”

It seems to me that the learned trial Judge was not quite right to hold that other claims cannot be joined in an action for recovery of possession. The only claims which appear improper in this action are the claims for (1) an order that the defendant sign the draft tenancy agreement, and (2) an order that the defendant pay all electricity and telephone bills and other rates and taxes due. All the other claims are however bound to fail since the claim for possession fails. The appeal as a whole fails. It is dismissed with costs assessed at N350.00 in favour of the respondent.

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Other Citations: (1989)LCN/0094(CA)

Dopemu Taiwo Adeyeri & Ors V. Akinbode Okobi & Ors (1989)

LawGlobal-Hub Lead Judgment Report

OGWUEGBU, J.C.A. 

The plaintiffs/appellants/applicants brought this application pursuant to S.213 of the Constitution of the Federal Republic of Nigeria, 1979, as amended praying for:-

“(a) An order granting leave to the plaintiffs/applicants to appeal against the judgment of this Honourable Court delivered in this suit on the 18th day of July, 1988;

(b) an order deeming the Notice of Appeal filed in this suit on the 6th of October, 1988, as having been properly filed; and

(c) for such further order or other orders as this Honourable Court may deem fit to make in the circumstances of the case.”

The application was dated 1st November, 1988 and filed on 3rd November, 1988. It is supported by an affidavit which has the notice and grounds of appeal attached to it as Exhibit “A” and a further affidavit with Exhibits “DTA.1” and “DTA.2” attached. The two exhibits are the judgment of this court to which leave to appeal to the Supreme Court is sought and the judgment of the court below.

The applicants filed their notice of appeal on 6th October, 1988 (within three months from the date of the decision). This application for leave to appeal to the Supreme Court having been filed on 3:11:88 is outside the statutory period (see S.25(2)(a) of the Court of Appeal Act, 1976).

Mr. Oke, learned counsel for the respondents, said that he was not opposing the application. At that stage the Court wanted to know from the learned counsel for the applicants the date when the judgment of this court was delivered and when the time to apply for leave to appeal began to run.

To these questions, Mr. Solarin for the applicants stated that the judgment was delivered on 18/7/88 and that the period allowed the applicants to appeal started to run from 1/9/88 because this court was on vacation from 15/7/88 to 31st August, 1988. He referred the court to Ss.213(3) and 227 of the Constitution of Nigeria, 1979 and S.8(2) of the Court of Appeal Act, 1976.

He further stated that the President of this court acting under S.227 of the Constitution and S.8(2) of the Court of Appeal Act issued a Practice Direction No.1 of 1988 (See Legal Notice No. 288 dated 1st July,1988 and contained at p.783 in the Federal Republic of Nigeria Official Gazette No. 46, Vol. 75 of 14th July, 1988) and that the said Practice Direction covered the application before the court. In other words, the application filed on 3/11/88 was within time. He again stated that the Practice Direction applies to appeals from this court to the Supreme Court.

The appeal is one not covered by S.213(2) of the Constitution and leave is therefore required. (See 213(3) of the Constitution). The application for leave to appeal must be made to this court within three months from the date of the judgment of this court (S.25(2)(a) of the Court of Appeal Act).

The Practice Direction No.1 of 1988 made by the President of this court provides:

“1. For the purpose of giving effect to the provisions of the Court of Appeal Rules in respect of any period within which any application for leave to appeal or for filing appellant’s or respondent’s brief or reply brief the period declared for the vacation of the Court shall not be taken into account for the computation of such period allowed by the Rules of Court.

2. For the avoidance of doubt the period between the 15th day of July,1988 to the 31st day of August, 1988 is hereby declared as vacation period.”

The learned counsel for the applicants therefore contended that the time for filing this application started to run from 1/9/88 which is the first working day after the vacation and the application filed on 3/11/88 was within time.

As stated earlier in this ruling S.227 of the Constitution and S.8(2) of the Court of Appeal Act conferred on the President of the Court of Appeal the power to make rules for regulating the Practice and Procedure of the Court of Appeal.

It is my humble opinion that the Practice Direction No.1 of 1988 is meant to give effect to the provisions of the rules of this Court by excluding the period of vacation of the Court from computation of the period within which, my applications for leave to appeal to this court from the decisions of the court below or for filing of briefs of argument in respect of appeals pending in this Court may be brought.

S.31 of the Supreme Court Act, 1960 made provision for the time of appealing to that Court and for enlargement of time within which to appeal. S.216 of the Constitution gives the Chief Justice of Nigeria power to make rules for regulating the Practice and Procedure of the Supreme Court.

If the Practice Direction No.1 of 1988 is construed to extend to applications for leave to appeal to the Supreme Court, it means that the President of this Court has made a rule regulating the Practice and Procedure of the Supreme Court which he did not make. The Practice Direction therefore applied to all applications for leave to appeal to this Court from the decisions of the Court below and the filing of appellant’s or respondent’s brief or reply brief and not to the type of application now before us. (See the ruling of this court in CA/I/114/85 dated 6/12/88).

For the above reasons, the application is refused and I make no order as to costs.

---

Other Citations: (1989)LCN/0093(CA)

Anthony Okokhue V. Joseph Obadan & Ors (1989)

LawGlobal-Hub Lead Judgment Report

OGUNDARE, J.C.A.

Following the local government elections held on 12/12/87,the 1st respondent was declared duly elected Councillor for Ward 3 in Agbazilo Local Government. The petitioner/appellant who was a candidate at the said election and who was dissatisfied with the result, filed two petitions (later consolidated into one) under the Local Government Elections Decree, No. 37 of 1987(hereinafter is referred to simply as Decree No. 31) praying in the first petition as follows:-

“That the petitioner who was placed second in the election be declared the winner of the councillorship election in Agbazilo Ward 3 OR ALTERNATIVELY: The whole election in Ward 3 was avoided by corrupt practices and offences against the Local Government Elections Decree, 1987 be declared null and void and fresh election ordered.”

Paragraph 11 of the second petition reads:-

“11. WHEREFORE, your petitioner prayers (sic) that it may be determined

(a) that the said E. Obadan was not only (sic) elected or returned or

(b) that the said Anthony Okokhue was only (sic) elected and ought to have been returned.”

In the course of the preliminary proceedings the 1st respondent filed a motion praying, among other prayers, for an order dismissing the petitions as offending paragraphs 3(1), (2) and (4) of schedule 3 to Decree No. 37 in that payment for security for costs was made outside the statutory period.

After learned counsel for the parties had addressed the court, the learned trial Judge in a considered ruling, upheld the submissions of learned counsel for the respondents and ruled:

“In the result, there is no election petition before me and this petitions is hereby dismissed with costs to be assessed.”

It is against this decision that the petitioner has now appealed to this court upon five grounds of appeal.

In accordance with the rules of this court the parties filed and exchanged their respective Briefs of Arguments. At the hearing of the appeal we invited learned counsel to address us as to whether the decision appealed against was final or interlocutory as the jurisdiction of this court to entertain the appeal would depend on a resolution of this question. Learned counsel addressed us on this question as well as on the merits or otherwise of the appeal. I shall now proceed to resolve the question relating to the nature of the decision appealed against, that is, whether it is final within the context of section 36(1) of Decree No. 37.

Mr. Ozekhome for the petitioner/appellant submits that the decision is final. After referring to the decision and the events leading to it, learned counsel submits that the dismissal of an action is a complete and effectual termination or disposal of that action even though the dismissal was not on the merit. He refers the court to the definitions of the words “Dismiss” and “Dismissal” in Black’s Law Dictionary (5th edition) and Collin’s English Dictionary (1985 edition). He cites Omonuwa v. Oshodin (1985) 2 N.W.L.R. (Pt.10) 924, 925, 927, 932-939. Learned counsel says that if the trial Judge had struck out the petition rather than dismiss same, his submission would have been that the decision was interlocutory. He submits further that there has been a decision on an election petition as envisaged in section 36(1) of Decree No. 37 in the sense that the election petition having been found incompetent, the petition becomes dead and the rights of both parties are hereby finally determined. Mr. Ozekhome argues that the question to be determined is whether the appellant, after the ruling of the lower court, could go back and argue his petition. Learned counsel submits that the appellant cannot do so and therefore the decision appealed against is final.

Mr. Akhere for the 1st respondent, concedes it that the law is rather confused as to what is final or interlocutory decision. He submits that applying all the tests arising out of decided cases, the decision appealed against is final and not interlocutory. He too cites Omonuwa v. Oshodin (supra). He finally submits that having regard to paragraph 2 of Schedule 3 to Decree No. 37, it would make no difference whether or not the trial Judge made an order of striking out or dismissal.

Mrs. Ojo, learned principal State Counsel, for the 2nd to the 4th respondents submits that the decision appealed against is an interlocutory decision in the context of Decree No. 37 and in view of the fact that election petitions are of a special nature. Learned Principal State Counsel observing that the order made was a dismissal of the petition as being incompetent submits that the order amounts to an order of striking-out. She argues that in either case the petitioner is foreclosed from presenting another petition by the provision of paragraph 2 of Schedule 3 to the Decree laying down the time within which a petition can be filed. Learned counsel citing Omonuwa v. Oshodin (supra) submits that the rights of the parties are unaffected by the decision appealed against -She adds that their status remains ante quo. She observes that petitioner’s prayer was not decided. She submits that the dismissal was not on the merit and was therefore not a final decision. The learned Principal State Counsel submits that the decision of the court below being interlocutory, the appellant has no right of appeal to this Court and relies on Orubu v. N.E.C. & Ors. – SC.158/88 decided on 16/12/88 (unreported) (but now reported in (1988) 12 S.C.N.J. 254 and (1988)5 N.W.L.R. (Pt.94) 323. Relying on Sections 31, 36(1) and 37(2) of Decree No.37, she submits that there was no determination as envisaged under the Decree.

Mrs. Ojo finally submits that the court cannot fill in gaps in the Decree and cites Nicon v. Power & Industrial Eng. Co. Ltd. (1986) 1 N.W.L.R. 1 (part 14) in support of this proposition.

It has become necessary to determine, at this stage, whether the judgment sought to be appealed against is final or interlocutory in view of the decision of the Supreme Court in Orubu v. N.E.C. & Ors. (1988) 12 SCNJ 254; (1988) 5 N.W.L.R. (Pt94) 323 to the effect that this court has no jurisdiction to entertain appeals from interlocutory -decisions of the High Court in election petitions brought under Decree No. 37. The terms “final judgment” and “interlocutory judgments” are not defined in any statute nor in the rules of court. What is final or interlocutory judgment is entirely a matter of case law which itself is rather in such a maze of confusion that Lord Denning, M.R., had this to say in Salter Rex &-Co. v. Ghosh (1971) 2 All E.R. 865,866:

“There is a note in the Supreme Court Practice. 1970. Vol. 1. p.779, para. 59/4/2 under RSC Ord. 59. r4, from which it appears that different tests have been stated from time to time as to what is final and what is interlocutory. In Standard Discount Co. v. La Grange (1877) 3 C.P.D. 67 and Salaman v. Warner (1891) 1 Q.B. 734 and 735, Lord Esher, M.R., said that the test was the nature of the application to the court and not the nature of the order which the court eventually made. But in Bozson v Altrincham Urban District Council (1903) 1 K.B. 547, the court said that the test was the nature of the order as made. Lord Alverstone, C.J., said that the test is: ‘Does the judgment or order, as made, finally dispose of the rights of the parties?’ Lord Alverstone, C.J., was right in logic but Lord Esher, M.R., was right in experience. Lord Esher. M.R’s test has always been applied in practice. For instance, an appeal from a judgment under RSC Ord 14 (even apart from the new rule) has always been regarded as interlocutory and notice of appeal had to be lodged within 14 days. An appeal from an order striking out an action as being frivolous or vexatious, or as disclosing no reasonable cause of action, or dismissing it for want of prosecution – every such order is regarded as interlocutory: see Hunt v. Allied Bakeries Ltd (1956) 3 All E.R. 513. (1956) 1 W.L.R. 1326. So I would apply Lord Esher’s test to an order refusing a new trial. I look to the application for new trial and not to the order made. If the application for a new trial were granted, it would clearly be interlocutory. So equally when it is refused, it is interlocutory. It was so held in an unreported case, Anglo-Auto Finance (Commercial) Ltd. v. Robert Dick, (4th December 1967) unreported and we should follow it today.

This question of ‘final’ or ‘interlocutory’ is so uncertain that the only thing for practitioners to do is to look up the practice books and see what has been decided on the point. Most orders have now been the subject of decision. If a new case should arise, we must do the best we can with it. There is no other way.”

(Italics is mine)

Useful definitions are to be found however, in paragraphs 505 & 506 of Halsbury’s Laws of England Vol. 26 (4th Edition).

Case Law in England has revealed two tests usually applied in determining whether an order or decision is final and interlocutory. The two tests are set out in the dictum of Lord Denning, M.R., already quoted above by me. In England, there are authorities in favour of either test. A glaring example of the state of uncertainty of the law in England is to be found in the approach of Lord Denning, M.R., himself. In Salter Rex & Co. v. Ghosh (supra) it is to the application he looked to determine whether the order was final or interlocutory. But in Hanning v. Maitland (1969) 3 All E.R. 1558. it is to the order he looked. In the latter case, a successful unassisted party had applied for costs incurred by him against the legal aid fund. The Judge in chambers dismissed the application. On appeal to the Court of Appeal, Lord Denning, M.R., delivering the judgment of the Court said:-

“Now the applicant seeks to appeal to this court. And the question has arisen: is it final, or is it interlocutory? If it is interlocutory he has to get leave from the Judge in Chambers; and it goes into the interlocutory list and will come on quickly. If it is final, he does not need leave and it may be some months before it comes on. The distinction between “final” and “interlocutory” has given rise to nice distinctions. It will finally determine -as between the applicant and the legal aid fund – whether the costs should come out of the legal aid fund or not.”

The first test, the application test, is better expressed in the words of Brett, L.J., in Standard Discount Co. v. Otard De La Grange 3 C.P.G. 67, 71-72.

“I think that our decision may perhaps be founded upon another ground, namely, that no order, judgment, or other proceeding can be final which does not at once affect the status of the parties, for whichever side the decision may be given; so that if it is given for the plaintiff it is conclusive against the defendant, and if it is given for the defendant it is conclusive against the plaintiff; whereas if the application for leave to enter final judgment had failed, the matter in dispute would not have been determined. If leave to defend had been given, the action would have been carried on with the ordinary incidents of pleading and trial, and the matter would have been left in doubt until judgment. I cannot help thinking that no order in an action will be found to be final unless a decision upon the application out of which it arises, but given in favour of the other party to the action, would have determined the matter in dispute. ”

Lord Esher, M.R., explained the position further in Salaman v. Warner & Ors (1891) 1 Q.B. 734,735-6, when he said:-

“Taking into consideration all the consequences that would arise from deciding in one way and the other respectively, I think the better conclusion is that the definition which I gave in Standard Discount Co. v. La Grange 3 C.P.D. 67 at p. 71 is the right test for determining whether an order for the purpose of giving notice of appeal under the rules is final or not. The question must depend on what would be the result of the decision of the Divisional Court, assuming it to be given in favour of either of the parties. If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute. I think that for the purpose of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory. That is the rule which I suggested in the case of Standard Discount Co. v. La Grange 3 C.P.D. 67. and which on the whole I think to be the best rule for determining these questions; the rule which will be most easily understood and involves the fewest difficulties. As an example of the difficulties produced by the opposite view, take the case where an order is made staying or dismissing an action as frivolous and vexatious; if that is a final order, the period during which an appeal may be brought is a year. In this case the Divisional Court allowed what is really equivalent to a demurrer to the statement of claim, and, as long as that decision stands, it is no doubt final in one sense; but, if they had disallowed the point taken, then the action must have gone to trial. If in such a case the order were final, there would be a year to appeal in, and the case might have to go on after that lapse of time, when there might be increased difficulty in dealing with the matter in dispute from the death or disappearance of parties or witnesses.”

(Italics mine)

Bozson v. Altrincham Urban District Council (1903) 1 K.B. 547 is usually cited as the leading authority laying down the second test, that is, the ‘nature of the order made’ test. In that case, Lord Alverstone, C.J., had this to say at p.548:-

“It seems to me that the real test for determining this question ought to be this: Does the judgment or order as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order.”

The law in England seems now to be as expressed in paragraph 504 of Halsbury’s Laws of England Volume 26 (4th edition) wherein the learned authors said:

“There is no definition in the Judicature Acts or the rules of Court made under them of the terms “final” and “interlocutory”, and a judgment or order may be final for one purpose and interlocutory for another. See Pheysey v Pheysey (1879) 12 Ch. D 305 at 307, C.A.; Re Compton, Norton v. Compton (1884) 27 Ch. D 392, C.A.; Re Page, Hill v. Fladgate (1910) 1 Ch. 489, C.A.; Light v. William West & Sons Ltd (1926) 2 K.B. 238, C.A., or final as to part and interlocutory as to part Light v William West & Sons Ltd (1926) 2 K.B. 238 at 241, C.A., per Lord Hanworth, M.R. It is impossible to lay down principles about what is final and what is interlocutory. Technistudy Ltd v. Kelland (1976) 3 All E.R. 632 at 634, (1976) 1 W.L.R. 1042 at 1045, C.A., where Lord Denning, M.R., said that the only thing to do was to go to the practice books and see what had been done in the past. It is better to look at the nature of the application and not at the nature of the order eventually made. Salter Rex Co. v. Ghosh (1971) 2 Q.B. 597 at 601, (1971) 2 All E.R. 865 at 866, C.A., per Lord Denning, M.R. In general, orders in the nature of summary judgment where there has been no trial of the issues are interlocutory.”

(Italics mine)

The first test does not find much favour in this country for our courts have tended to the second view – the nature of the order made test. I need mention only a few of the cases where our courts have come to accept this second test. In Blay & Ors. v. Solomon 12.W.A.C.A. 175, the respondent, as plaintiff sued the appellants, as defendants, for possession of property, an account of rents and profits and partition or sale. The trial Judge ordered that an account as between the respondent and the third appellant should be filed and that the property be sold by auction. On appeal to the West African Court of Appeal, the question arose whether the decision of the trial Judge was interlocutory requiring special leave to appeal. The court held it was and as no special leave to appeal was obtained, it was dismissed. Verity, C.J., delivering the judgment of the Court said at page 176 of the Report:

“A number of cases were cited by counsel on each side, bearing upon the distinction between an interlocutory and a final judgment.

We find it necessary to refer to but three, all of which were cited in the case of Krakue v. Mensah (1), (1926-1929), G.C.L.R. 277, a case decided by the Full Court on this point. In Standard Discount Co. v. Le Grange (1877), 3 C.D.D. 71; 47 L.J.Q.B. 3; 37 L.T. 372, Brett, L.J., said:-

“No order, judgment or other proceeding can be final which does not at once affect the status of the parties for whichever side the decision be given.”

In Bozson v. Altrincham Urban District Council (1903) 1 K.B. 547; 72 L.J.K.B. 271; 67 J.P. 397; 19T.L.R. 266; 47 Sol. Jo. 316, in a passage cited with approval by Swinfen Eady, L.J., in M. Isaac & Sons Ltd. v. Salbstein & Anor 85 L.J.K.B. 1433; 114L.T. 924; 32 T.L.R. 370; 60 Sol. Jo. 444, Alverstone, L.C.J., said:-

“It seems to me the real test for determining this question ought to be: does the judgment or order, as made, finally dispose of the rights of the parties?”

In Ex parte Moore, In re Faithful (1885), 14 Q.B.D.627; 54 L.J.Q.B. 190; 52 L.T. 376; 1 T.L.R. 263, Brett, M.R., said:”

If the Court orders something to be done according to the answer to the enquiries, without any further reference to itself, the judgment is final.”

We think that the application of these principles to the present case in conclusive.”

Applying the test to the facts before the Court, the learned Chief Justice went on to say:-

“The terms of the judgment of the Court below do not at once affect the status of the parties, or indeed of any of them, for there is no order consequent upon the enquiries into the accounts, no determination as to the distribution of the proceeds of the sale, no indication of the rights or interests of the parties or any of them in relation thereto, no determination of the plaintiff’s claim against either the first or second defendant and no order as to by whom or to whom the costs when taxed are to be paid. There is no order  for anything to be done without further reference to the Court, and in no sense does it appear from the judgment that the rights of the parties or any of them are finally disposed of.

We have no doubt whatever that the decision appealed from is an interlocutory decision.”

See also Bansah v. G.B. Ollivant Ltd. (1954) 14 W.A.C.A. 408.

Blay & Ors v. Solomon was cited along with other authorities by the Federal Supreme Court in Afuwape & Ors v. Shodipe & Ors (1957) 2 F.S.C. 62; [1957] SCNLR 265 and although the Court in the latter case did not indicate in its judgment which of the two tests it preferred, it is clear, from the judgment that the second test prevailed. In the case, the plaintiffs/respondents instituted proceedings in the High Court against the defendants/appellants Nos. 1 to 7 seeking an order for partition or sale of certain properties. Appellants Nos. 8 to 14 were on their own application joined as co-defendants.

The learned trial Judge having made the following finding:-

“I find that the true purchasers of the properties were the 28 subscribers, the 21 plaintiffs and the 1st seven defendants, and if any estate at all was conveyed to the Union as a body it was in trust for those persons” then proceeded to hold that the plaintiffs were entitled either to partition or sale but indicated that he was not satisfied that partition was practicable.

On appeal to the Federal Supreme Court, a preliminary point was raised as to whether the judgment appealed from was final or interlocutory because if it was not final, then the appeal was out of time. It was held-

1. As regards appellants Nos. 8 to 14, the judgment was final in that it decided that they had no interest in the properties and could not, therefore, share in any partition or sale thereof.
2. As regards appellants Nos. 1 to 7, the judgment was clearly not a final one as it did not at once affect the status of the parties, neither did it finally dispose of their rights since it left undecided the very point at issue, namely, whether there would be partition or sale. Nothing could be done and no execution could proceed without further reference to the Court.

Concluding the judgment of the Court, Nageon de Lestang, F.J., said at page 64 of the Report:-

“Applying these tests to the facts of this case, it seems to me that the judgment is clearly not a final one. The judgment of the Court below does not at once affect the status of the parties, neither does it finally dispose of their rights, since it leaves undecided the very point at issue, namely, whether there would be partition or sale. Again nothing can be done and no execution can proceed without further reference to the Court. The objection, therefore, succeeds as far as appellants 1 to 7 are concerned, and their appeals are accordingly struck out. It fails as regards appellants 8 to 14 and the appeal must go on in their case.”

The second test was applied by the Federal Supreme Court in Alaye of Effon v. Fasan (1958) 3 F.S.C. 68; [1958] SCNLR 171 where the Court held that an order made on an application to set aside an order’ striking out a cause for the non-appearance of the plaintiff is an interlocutory order. Coussey, Ag. F.J., delivering the judgment of the Court said at page 69 of the Report:

“Sometimes it is not easy to distinguish between what is an interlocutory order and what is a final order. No comprehensive definition has ever been given by the courts. In the course of an interesting argument Mr. Davies for the plaintiff/appellant has referred to Forbes-Smith v Forbes-Smith and anor. (1901) P.D. 258, The City of Manchester (1879-80) 5 P.D. 221, and Marsden v.Lancs Yorks Railway Company (1881) 7 Q.B.D. 641 and Mr. Fani- Kayode for the defendant/respondent has referred to in re Herber Reeves and Company (1902) 1 Ch. 29.

On the authorities I think it is clear that the learned Judge was right in holding that this was an interlocutory decision, and this appeal must, therefore, fail. In Standard Discount Company v.

3 C.P.D. 71, Brett, L.J., said:-

“No order, judgment or other proceeding can be final which does not at once affect the status of the parties for whichever side the decision is given.”

And in Bozson v. Altrincham Urban District Council (1903) 1 K.B.547 in a passage which Swinfen Eady, L.J., cited with approval in M. Isaac and Sons Limited v. Salbstein and anor. (1916) 85 L.J.K.B. 1433, Lord Alverstone said:-

“It seems to me that the real test for determining this question ought to be this: Does the judgment or order, as made, finally dispose of the right of the parties?”

In the present appeal the matter is, in my opinion, decided conclusively by the judgment of Cozens-Hardy, M.R., in In re Ferome (1907) 2 Ch. 145. Referring with approval to the view taken in In Re Herber Reeves and Company, supra, the learned Master of the Rolls held that an order made upon an application to review a taxing master’s certificate is an interlocutory order although the Court did not accede to the application. The point is, perhaps, put more tersely in James Sam Bansah v. G.B. Ollivant Ltd., 14 W.A.C.A. 408 which was an appeal from a Judge’s refusal to review his judgment. Foster-Sutton, P., said:-

“The question for determination is – does the order under appeal finally dispose of the rights of the parties? In our view it does not.

In re Jerome and Peck v. Peck (1948) 2A.E.R 229. If the learned trial Judge had agreed to review his judgment that decision could clearly not have finally disposed of the rights of the parties, and a refusal to review does not, because it is the judgment which is the subject of the application for review which finally disposed of the rights of the parties, not the trial Judge’s refusal to review.”

In Ude & Ors. v. Agu & Ors. (1961) All N.L.R. 65, 66-7, the Federal Supreme Court expressly followed Blay & Ors v. Solomon (supra). In that case the Court, per Brett, F.J., said:-

“A preliminary objection to the competency of the appeal was argued by counsel for the respondents, who submitted that the decision appealed against was an interlocutory one, and that the notice of appeal was invalid first because the leave of the trial Judge was not obtained as, at the material time, was required by section 3(b) of the Federal Supreme Court (Appeals) Ordinance, and secondly because the notice of appeal was not entered until the time limit of fourteen days for appealing against an interlocutory decision had expired. We overruled the objection but did not at that stage state our reasons. In England it appears from notes in the Annual Practice to O.58 r.4 of the Rules of the Supreme Court that the Court of Appeal has at different times adopted two different tests for determining whether a decision is an interlocutory or a final one for the purposes of an appeal.

One, which the editors of the Annual Practice say is generally preferred is that stated by Lord Alverstone, C.J., in Bozson v. Altrincham U.D. C. (1903) 1 K.B. 547 –

“Does the order as made finally dispose of the rights of the parties? If it does then I think it ought to be treated as a final order; but if it does not it is then, in my opinion, an interlocutory order.”

The other, as stated in Salaman v. Warner (1891) 1 Q.B. 734, is that an order is an interlocutory order unless it is made on an application of such a character that whatever order had been made thereon must finally have disposed of the matter in dispute. Thus one test looks at the nature of the proceedings; the other (which is generally preferred) looks at the order made.

In Blay v. Solomon (1947) 12 W.A.C.A. 175 the West African Court of Appeal followed the test which looks at the order made, and in my view it is clearly the proper test for this Court to adopt, particularly having regard to the fact that there is a constitutional right of appeal against a final decision of a High Court sitting at first instance, whereas an appeal against an interlocutory decision is now left to be conferred by legislation and no such legislation has yet been enacted, so that an appeal does not at present lie at all against an interlocutory decision.”

See also Coker v. Coker (1963) 1 All N.L.R. 297,298.

A case that has been cited to us by counsel in this matter and in similar matters now on hand is Omonuwa v. Oshodin & Anor (supra). In this case, the appellant as plaintiff in the High Court had sued the respondents as defendants, over a piece of land. Pleadings having been filed and exchanged the defendants brought a motion before the trial Court to argue the preliminary points of law raised in their statement of defence, to wit, “that this suit is not maintainable against the defendants/applicants in that the case is res judicata …. ” The points of law raised in the statement of defence were rejected and the motion was dismissed. The defendants appealed against the ruling to the Court of Appeal on the ground, inter alia, that the trial Judge failed to pronounce on the issue of res judicata canvassed before him. The Court of Appeal allowed the appeal and quashed the ruling appealed against. The case was remitted to the court of trial “for the Judge to make a decision.” Being dissatisfied with this order, the plaintiff appealed to the Supreme Court without obtaining the leave of either the Court of Appeal or the Supreme Court to appeal. At the Supreme Court, a preliminary objection was raised to the competence of the appeal in that no leave to appeal was obtained. The objection raised the issue whether the order of the Court of Appeal was final or interlocutory.

In the lead judgment of Karibi-Whyte, J.S.C., concurred in by the other six Justices that sat on the appeal, the learned Justice of the Supreme Court, after a review of various authorities both in England and Nigeria – a number of which he criticised – observed at p.938 thus:

“All the cases cited agree on the proposition that a decision between the parties can only be regarded as final when the determination of the Court disposes of the rights of the parties, (and not merely an issue) in the case.”

He then held:

“Where only an issue is the subject matter of an order or appeal the determination of that Court which is a final decision on the issue or issues before it, which does not finally determine the rights of the parties, is in my respectful opinion interlocutory.”

The learned Justice had earlier held, at pages 937-938:

“The defect in relying on the nature of the order made (though still a workable test as distinguishable from the nature of the application from which the order is made is that the former ignores the issue or issues giving rise to the application and consequently the order, and fastens on the order which is the result of the application.

An action is commenced by a writ of summons, originating summons or by any other method provided by the Rules of court. It is normally terminated by a judgment of the court determining the rights of the parties which are the issues joined in the case. Any other process determining an issue or issues between the parties or indeed determining the rights of the parties to the action can only be regarded as an interlocutory application.”

It would seem that the learned Justice preferred the nature of the application ‘test to the nature of the order made’ test hitherto applied in this country. He concluded thus, at page 939:

“In my opinion, the ideal approach is to consider both the nature of the application, and the nature of the order made in determining whether an order or judgment is interlocutory or final in respect

of the issues before it as between the parties to the litigation. Thus where the nature of the application does not aim at finally determining the claim or claims in dispute between the parties, but only deals with an issue, both the application and the order or judgment must be interlocutory. See Isaacs & Sons v. Salbstein & anor. (supra) at p.146. Alaye of Effon v. Fasan (1958) 3 F.S.C. 68; [1958] SCNLR 171. However, where an application has the effect by the order therefore of finally determining the claim before the Court, the order may properly be regarded as final. See Afuwape & Ors. v. Shodipe (1957) 2 F.S.C. 62 at p.68; [1957] SCNLR 265. This proposition is clearly consistent with the principles as enunciated in the judicial decisions and is logical. It also accords with common sense and the practice of the Courts.

The order appealed against in the case before us does not purport and has not finally settled the rights of the parties in the claim before the court, and is therefore an interlocutory order. The determining factor whether an order or judgment is interlocutory or final is not whether court has finally determined an issue before it. It is whether or not it has finally determined the rights of the parties in the claim before the court.”

It would appear from the various dicta pronounced in the case that a decision becomes final only when the merit of the case had been determined.

Irikefe, J.S.C. (as he then was) said at pages 939-940:

“This matter has yet to be determined on its merit and accordingly, the decision in the High Court was interlocutory and in consequence therefore, the decision of the Court of Appeal thereon would remain interlocutory.”

(italics is mine)

Nnamani, J .S.C., in his own contribution after posing the question – what is an interlocutory decision? – referred to the definition in Dictionary of English Law by Earl Jowitt and said at p.942:

“It seems to me in essence that it is a decision given in the course of proceedings but which does not determine the issues between the parties finally.”

Uwais, J.S.C., for his own part said at p.943:

“The decision of the Court of Appeal though final in relation to that court is not in reality a final determination of the substantive issues which were pending before the High Court. The Court of Appeal was very clear on this and that is why it made the order remitting the case to the High Court for the trial Judge to make a decision.

There can be no doubt that the appellant/respondent has a right under section 218 subsection (2) (a) of the Constitution of the Federal Republic of Nigeria, 1979, to appeal as of right on questions of law alone against the decision of the Court of Appeal.

The issue for determination here is whether the decision of the Court of Appeal was final or interlocutory in the context of section 31 subsection (2)(a) of the Supreme Court Act, 1960. If it was a final decision the appellant/respondent was entitled to appeal within three months, but if it was an interlocutory decision he had only 14 days within which to appeal. In determining the nature of the appeal under section 31 subsection (2)(a) one has to examine the proceedings in the trial court to see whether or not the point in issue was determined by the trial court in limine or before judgment. If it is so determined then the next question is whether the substantive issues in the cause of action have been disposed of by such decision.

In the present case the preliminary objection raised in the High Court by the respondent/applicant was clearly an interlocutory matter notwithstanding the fact that the issues raised had been pleaded earlier in the statement of defence. Though, the High Court overruled the objection raised, the decision of the Court of Appeal upholding the objection is, for the purposes of this exercise, tantamount to a decision of the trial court. By the decision of the Court of Appeal the substantive issues in the cause of action had not been disposed of and that is why it became necessary for the Court of Appeal to remit the case to the High Court for a final decision by the trial Judge.”

It is crystal clear that if the various dicta in Omonuwa v. Oshodin – particularly of Karibi-Whyte, J.S.C. – are applied equally to all decisions both of the High Courts and Court of Appeal, there would have been a departure from the test consistently applied in the courts in this country since Blay v. Solomon (supra).

After Omonuwa v. Oshodin came Western Steel Works Ltd. v. Iron & Steel Workers Union & Anor (1986) 3 N.W.L.R. (Pt. 30) 617 – another decision of the Supreme Court on the question of whether a decision is final or interlocutory. This latter appeal touched on the decision of a lower court on the issue of jurisdiction. Obaseki, J.S.C., in his lead judgment, followed Automatic Telephone & Electric Co. Ltd. v. Federal Military Government (1968) 1 All N.L.R. 428,43-434 S.C.N.; Adegbenro v. Akintola & Anor (1962) 1 All N.L.R. 442, 474 P.c. and Agbajo v. Attorney-General of the Federation (1986) 2 N.W.L.R. (Pt.23) 528 C.A., and held that a decision of a Court below declining jurisdiction in a matter is a final decision. It was acknowledged in the judgment of Obaseki, J .S.C., that Automatic Telephone & Electric Co. Ltd. v. Fed. Military Government and Adegbenro v. Akintola were criticised in the lead judgment of Karibi-Whyte, J.S.C., in Omonuwa v. Oshodin. If the dicta of Karibi-Whyte, J.S.C., in Omonuwa v. Oshodin had all been followed, the decision in Western Steel Works Ltd. v. Iron & Steel Workers Union would have been different.

I now come to the decision of the Supreme Court in Akinsanya v. U.B.A. Ltd. (1986) 4 N.W.L.R. (Pt. 35) 273 where Omonuwa v. Oshodin was considered and explained. The Court explicitly in that case reaffirmed the ‘nature of the order made test laid down in Blay v. Solomon and other cases that followed as the correct approach to determining whether a decision is final or interlocutory. It tacitly overruled the dictum of Obaseki, J.S.C., in Western Steel Works Ltd. v. Iron & Steel Workers Union wherein the learned Justice had said:

“Similarly, if a court gives a declaration that it has jurisdiction, it concludes the rights of the parties to approach that court for a remedy.”

I say this for Eso, J.S.C., in his lead judgment (with which the other 6 Justices agreed) said at page 296:

“In other words, if the court of first instance, orders that a matter before it be terminated (struck out) for it has no jurisdiction to determine the issue before it, that is the end of all the issue arising in the cause or matter and there is no longer, any issue between the parties in that cause or matter that remains for determination in that court. But it would be interlocutory if its order is that it has jurisdiction for there will be reference of the remaining issues in the case itself.”

With Akinsanya v. U.B.A. Ltd., the test applicable is now beyond question although its application may still be bedeviled with difficulties.

Now coming to the appeal on hand, if it had been an appeal in an ordinary civil proceedings I would not have hesitated in holding that the decision appealed against is on the authorities, a final decision. It does not matter that the trial Judge dismissed the petition rather than striking it out. The order of dismissal made in the present case is not an order on the merits.

Judgment on the merits is defined in Earl Jowitt’s Dictionary of English Law (second edition) at page 1026 as meaning “where the case has been argued and the court had decided which party, is in the right; such a judgment is given after trial.”

A judgment is not given on the merits when it is founded on some technical rule of procedure.

An election petition has been held to be sui generis – see: Onitiri v. Benson, 5 F.S.C. 150 where it was also held that a right of appeal is a curtailment of the jurisdiction of the court whose decision is sought to be appealed, and extends the jurisdiction of the court to which the appeal lies; and the right must be conferred clearly and definitely, not necessarily perhaps by express words, but at least by the clearest possible implication. The right of appeal given in Decree No. 37 is conferred by section 36(1) thereof which reads:

“36(1) Notwithstanding any provisions permitting any other period of notice, notice of appeal to the Court of Appeal from a decision on an election petition shall be given within one month of the decision in question.”

(italics is mine)

What I now have to decide is: notwithstanding that I have held that the decision appealed against in the appeal on hand is a final decision, is it an appealable decision within the context of section 36(1) of Decree No. 37. For a decision to be appealable under section 36(1) it must be a decision ON a election petition and not a decision IN an election petition. What then is a decision on an election petition?

To answer this question, one has to look at sections 31, 34(1), 37 of the Decree and paragraph 28(1) and (2) of Schedule 3 of the Decree.

They read as follows:

“31. The High Court shall have original jurisdiction to hear and determine any questions whether any person has become an elected member of a Local Government Council.

34.(1) An election may be questioned on the following grounds-

(a) that the person whose election was questioned was at the time of the election not qualified or was disqualified from being elected as a member of a Local Government Council; or

(b) that the election was avoided by corrupt practices or offences against this Decree; or

(c) that the respondent was not duly elected by a majority of lawful votes at the election; or

(d) that the petitioner was validly nominated but was unlawfully excluded from the election.

37.(1) If the High Court shall have determined that a candidate returned as elected was not duly elected, then any candidate declared by the court as elected shall from the time of the decision of the High Court be deemed to be duly elected until any determination of the appellate Court to the contrary.

(2) If the High Court shall have determined that a candidate returned as elected was not duly elected and that the election was avoided then if notice of appeal from such determination shall have been given within one month the candidate returned as elected shall, notwithstanding the decision of the High Court, be deemed to have been duly elected for the period until the determination of the Court of Appeal is given on such appeal or the appeal is abandoned.

28.(1) At the conclusion of the trial, the court shall determine whether a person whose election or return is complained of or any other person, and what person, was duly returned or elected, or whether the election was void, and shall certify such determination to the Electoral Officer.

(2) Upon such certification being given the election shall be confirmed, or (subject to the provisions of section 37 of this Decree in the event of an appeal) a new election shall be held in accordance with such certification (or in accordance with finding upon the determination of such appeal).”

In my respectful view, a reading together of the above provisions would suggest that the phrase “a decision on an election petition” could only mean a determination of any question whether any person has become an elected member of a Local Government Council or that the election was avoided, that is, a determination on the merits of the petition. Any other decision made in the course of the election proceedings would only be a decision in an election petition. This view seems to accord with the submission of Dr. Odje, S.A.N., in Orubu v. NEC & Ors (supra) – see p.290 line 21-23 of the Report with which Karibi- Whyte, J .S.C., agreed at page 291 lines 39-42 and p.292 line 1 wherein the learned Justice said:-

“I have arrived at this conclusion because I agree with Dr. Odje for the appellant that section 36(1) has provided for appeals to the Court of Appeal from a decision on an election petition, which naturally refers to the conclusion of the proceedings. It does not contemplate decisions in an election petition made before the final determination. ”

(Italics mine)

Dr. Odje has argued before us in an appeal similar to the present one (CA/B/27/6m/89) that a decision on an election petition determines the petition.

He went on to submit that by striking out the petition the respondent had been declared duly elected and that all the issues raised in the petition had been decided against the petitioner. With utmost respect to learned Senior Advocate, I cannot accept the submission that by striking out a petition the trial Judge has thereby declared the respondent (whose election is being challenged) duly elected nor that all the issues raised in the petition have ‘been decided against the petitioner. By striking out the petition, the prayer therein remains undetermined and but for paragraph 3 of Schedule 3 the petitioner would still have been at liberty to bring another petition after obtaining an order for enlargement of time to so do. In an ordinary civil proceedings the striking out of the action though puts an end how-be-it ex tempore, to the rights of the parties; it is a final decision. But section 36(1) does not confer right of appeal from a final decision in an election petition but from a decision on an election petition.

Dr. Odje has also referred to a number of earlier decisions. I shall now consider these decisions. As they are Supreme Court decisions, I am bound by them. If any, or all, of these authorities has determined the question under consideration I am bound to give effect to such authority. I take first Onitiri v. Benson (1960) 5 F.S.C. 150, 154 and Benson v. Onitiri (1960) 5 F.S.C. 69, 75. Regulation 9 of the Federal Legislative Houses (Disputed Seats) Regulations, 1959, LN 247 of 1959 under which Benson appealed is in pari materia with section 36(1). But Benson’s appeal concerned with the decision of the High Court avoiding his election. There was thus a hearing and a determination of the prayer(s) in the petition. Benson v. Onitiri, therefore does not apply to the issue under consideration. In Onitiri v. Benson, Ademola, C.J.F., said at p.153:

“We have carefully considered all the authorities cited to us and it is abundantly clear to us from them all that the jurisdiction of any Tribunal to deal with such matters as election petitions, which affect membership of a legislative assembly, is a jurisdiction of a very special nature which does not carry with it the ordinary incidents of appeal in an ordinary civil case.”

Later in his judgment, the learned Chief Justice added at p. 154:

“Moreover, it is noteworthy that under Regulation 9, notice of appeal against the decision of a High Court on an election petition must be given within one month of the decision in question a most important variation from the rules of procedure in an ordinary civil matter, indicating that an appeal against the decision of a High Court on an election petition is in a class by itself.”

He then referred to Regulation 69 (which is in pari materia with paragraph 51 of Schedule 3 to the Decree) and held at p.155:

“Chief Rotimi Williams sought to urge that because these Regulations applied to election petitions the practice and procedure of this Court and of the High Court in dealing with ordinary civil matters, it must be assumed that for the purposes of right of appeal to the Privy Council an election petition must be considered as an ordinary civil cause or matter. We however, prefer the view of Mr. Kayode which he adopted when it was put to him by a member of the Court that rules of practice and procedure’ on the one hand, and ordinary incidents of appeal on the other, do not run in double harness. It seems to us that Regulation 69 of the 1959 Regulations is merely a device adopted for convenience and to obviate the necessity possibly for prescribing separate rules to be observed when election petitions are before the High Court or this Court.”

(italics mine)

The above weighty dicta of the learned Chief Justice show clearly that an appeal against the decision of a High Court on an election petition is in a class by itself and that the incidents of appeal in an ordinary civil case do not apply to it. Thus ‘final decision’ in an ordinary civil case does not necessarily mean the same in an election petition.

In any event, unlike in section 220(1) of the 1979 Constitution where the words used are “final decisions in any civil, the words used in section 36(1) of the Decree No. 37 are “decision on an election petition.” It has been held by the Supreme Court in Orubu v. N. E. C. & Ors. (supra) that there is a difference between “decision on an election petition” and “decision in an election petition.” Consequently, the interpretation of the phrase used in section 220(1) of the Constitution cannot be of much help in the in perpetration of the phrase used in section 36(1) of the Decree.

In Eminue v. Nkereuwen & Ors (1966) 1 All N.L.R. 63 and Paul Unongo v. Aper Aku (1983) 11 S.C. 129; [1983] 2 SCNLR 332 the issue now under consideration was never raised: the two cases are, therefore, no authority for saying that a decision striking out a petition for non-compliance is a decision on an election petition. Our attention has not been drawn to and decided case on the extent of the right of appeal granted in section 36(1) or any similar legislation.

The conclusion I reach is that the decision appealed against being not a decision on the election petition but in the petition proceedings, although final in an ordinary civil proceedings, is not such a decision that is appealable under section 36(1) of Decree No. 37. Consequently, I hold that the appeal now before us is incompetent and it is hereby struck out with N150.00 costs to each set of respondents.

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Other Citations: (1989)LCN/0092(CA)