Funduk Engineering Ltd. Vs James Mc Arthur (1996)

LAWGLOBAL HUB Lead Judgment Report

UWAIS, C.J.N.

By a writ of summons taken out on the 18th day of December, 1985 the plaintiff/appellant brought an action against the defendants/respondents in the High Court of Oyo State, holden at Ibadan. The case was heard by Ibidapo-Obe. J. In his judgment which was given on the 14th day of July, 1988 against the defendants/respondents, the learned trial Judge remarked as follows:-

“Col. Yohannah Madaki now retired must have been reading his law upside down when he wrote as contained in Exhibit 1. His influence over the Commissioner of Police Oyo State Command, Mr. Nkana as epitomised in this sordid affair to say the least is most unfortunate; it is administrative recklessness, reminiscent (sic) of what philosophers described as ‘power corrupts’ absolute power corrupts absolutely!’ ………”

The applicant/respondent was neither a party nor a witness in the case before the High Court. Sometime in November, 1988 he came to know of the remark made by the learned judge. Feeling aggrieved, the applicant/respondent brought a motion on notice in the Court of Appeal, Ibadan on the 6th day of July, 1989 praying for:-

“(1) Extension of time within which to apply for leave to appeal pursuant to sections 221 and 222(a) of the Constitution of the Federal Republic of Nigeria, 1979 against a portion of the decision given by the Ibadan High Court on 14th day of July, 1988.

(2) Leave to appeal from the portion of the said decision.

(3) Departure from the rules of this Honourable Court so that the appeal can be heard on the documents referred to (and marked) as Exhibit “X’ in the affidavit in support of this motion on notice; and such further or other order(s) as this Honourable Court deem fit to make in the circumstance.”

The application was filed pursuant to the provisions of Section 25(4) of the Court of Appeal Act, 1976; Order 3 rule 4 and Order 7 rule 2 of the Court of Appeal Rules, 1981; sections 221 and 222(a) of the Constitution of the Federal Republic of Nigeria, and the inherent jurisdiction of the Court of Appeal. In the affidavit in support of the motion on notice, sworn to by the applicant/respondent, paragraph 4 quoted the part of the judgment of Ibidapo-Obe, J containing the offending remark and paragraphs 5 to 8 thereof stated thus:-

“5. The document now shown to me and marked “Exhibit Y” is a draft of the Notice of Appeal intended to be filed if the motion on notice in support of which I swear to this affidavit is granted.

6. I got to know of the adverse remarks made against my conduct by the Ibadan High Court when I came down to Ibadan sometime in November, 1988 in connection with another case, Suit No. 1/93/87 in which the plaintiff herein, sued me for libel in the course of which the said judgment was tendered as (an) Exhibit.
7. My counsel in the said Suit, Mr. Tony Oyeyipo drew my attention to the said judgment and sought my views on the comment contained on page 36 and I expressed utter embarrassment, bewilderment and disbelief that such a remark could emanate from the court in respect of a matter in which I was neither a party nor a witness.
8. I felt however that since the judgment had been tendered as Exhibit in the Libel Suit, it may be prejudicial to the plaintiff if I sought to appeal against the said determination, particularly when it was the same Judge who presided over the determination in this action.”

The draft notice of appeal contained only one ground of appeal which reads:

“(1) The learned trial Judge erred in law in making the findings complained of regarding the conduct of the appellant when:-

(a) The Exhibit referred to by the trial Judge was, according to His Lordship, blotted with some of the paragraphs missing;

(b) The said appellant was neither a party to, nor a witness in the action;

(c) The said appellant was not given a fair opportunity of being heard before the said determination was made against him, particularly, when the Exhibit referred to had a whole page of it blotted out as contained in the court’s observation on page 19 of the judgment and the determination was injurious to the appellant and constituted an unnecessary strictures which are irrelevant to the judgment in the case;