Institute of Chartered Accountants of Nigeria & Anor. V. Attorney-general of the Federation & Ors. (2003)

LawGlobal-Hub Lead Judgment Report

MORONKEJI OMOTAYO ONALAJA, J.C.A. 

The first plaintiff, the Institute of Chartered Accountants of Nigeria is a corporation registered and incorporated in Nigeria. The 2nd plaintiff for himself and on behalf of other members of the 1st plaintiff jointly instituted an action against the 1st defendant, the Attorney-General of the Federal Republic of Nigeria and Association of National Accountants of Nigeria which incorporation and registration is being challenged vehemently by declaratory and injunctive reliefs by the plaintiffs jointly at the Federal High Court, Lagos Division.

After services of the writ of summons on the defendants, the 2nd defendants in accordance with fundamental right of fair hearing enshrined in section 36 of 1999 Constitution of the Federal Republic of Nigeria with a freedom of choice of legal practitioner to uphold, protect and defend him/her in the determination of his/her civil rights and obligations- Chief Obafemi Awolowo v. Hon. Minister of Internal Affairs, Usman Sarki and A.-G., Federation (1966) 1 All NLR 178, (1966) NCLR 162, (1966) 1 ALR COMM 380 SC: Baba v. Habib Nigeria Bank Ltd (2001) 7 NWLR (Pt. 712) page 496 CA engaged the legal service of Clement Obiora Akpamgbo Senior Advocate of Nigeria (SAN) and former Attorney-General of the Federal Republic of Nigeria during whose incumbency, the 2nd defendant was registered and incorporated in Nigeria.

After service of the writ of summons on 1st and 2nd defendants pleadings were exchanged, delivered and amended by the parties several times and with a deluge of interlocutory applications by both parties on notice to other parties.

At pages 85 to 91 of the record of appeal, plaintiff filed a motion on notice at the Federal High Court, Lagos Division wherein the plaintiffs sought an order or relief for and filed on 14th March, 2000 for an order:
“AN ORDER, disqualifying and/or barring Clement Akpamgbo, SAN, from appearing for the defendants in this case.”

Plaintiffs filed supportive affidavit of 21 paragraphs at pages 87 to 91 of the record of appeal. In paragraph 4 of the said supportive affidavit, the plaintiffs endorsed their amended statement of claim as follows:
“4. That the claims of the plaintiffs as endorsed on their amended statement of claim are as follows:
(i) DECLARATION that the Decree No. 76 of 1993 purportedly signed on 25th August, 1993 is illegal, invalid, null and void in that, General Babangida, in fact, signed the decree after he had left office.
(ii) Declaration that Decree No. 76 of 1993 does not qualify as a Decree and is therefore null and void in that
(i) The Decree was directed and made for the benefit of a particular class of persons.

(ii) Section 17(2) constitutes a judicial act, rather than legislative enactment.

(iii) The Decree is duplicitous of the provisions and intendment of ICAN Act.

(iv) DECLARATION that Decree 76 of 1993 is null and void, in that it violates the provisions of African Charter on Human and Peoples Rights.

(v) A DECLARATION that having regard to the provisions of section 16(a) of the Institute of Chartered Accountants Act, 1965 vesting the 1st plaintiff with the power to regulate the standard, knowledge and skills to be attained by persons describing to be professional Accountants in Nigeria, the provisions of section 1(1) of the Association of National Accountants of Nigeria, Decree No. 76 of 1993 purporting to vest the same power to regulate the standard, knowledge and skills to be attained by person describing to be professional Accountants in Nigeria in the 2nd defendant is repugnant, absurd, unreasonable, contrary to legislative norms and purposes and, therefore, void and of no effect whatsoever

(vi) A DECLARATION that the provisions of section 17(1) and (2) of the Association of National Accountants of Nigeria, Decree No. 76 making it criminal offence for persons who are not registered with the 1st plaintiff to practice the accountancy profession in Nigeria in expectation of reward with effect from the enactment of the said Decree constitute an unlawful interference with the 1st plaintiff’s existing right to continue to practice as a professional accountant which became vested in him, having been registered with the 1st plaintiff and are invalid, unconstitutional, null and void and of no effect whatsoever.

(vii) A DECLARATION that having regard to the provisions of ICAN Act, 1965, section 8 of ANAN Decree No. 76 of 1993, which lower the standards and skills of persons to be registered as professional Accountants is unreasonable, absurd, unconscionable and actuated by improper motive and designed to ridicule the profession of Accountancy in Nigeria and is, therefore, void and of no effect.

(viii) A DECLARATION that subsections (a) – (c) of section 8 of the ANAN Decree of 1993 conferring automatic membership of the Accountancy Profession on identified or identifiable groups of person are violating the principles governing law-making and are, therefore, null and void.

(ix) AN ORDER of the court, setting aside the Association of National Accountants of Nigeria, Decree No. 76 of 1993 for having been invalidly and illegally promulgated.

(x) ALTERNATIVELY to paragraph viii supra, AN ORDER of the court, setting aside the provisions of sections 18(a) and 17(1) and (2) of the Association of National Accountants of Nigeria, Decree No. 76 of 1993 being repugnant, unreasonable and absurd and invalid.

(xi) ALTERNATIVE to relief ix supra, AN ORDER of perpetual injunction, restraining the 2nd defendant from giving or further giving effect to the provisions of sections 1 and 17(1) and (ii) of the Association of National Accountants of Nigeria Decree.”

The other relevant paragraphs are:
“(7) THAT MR. CLEMENT AKPAMGBO SAN, was ATTORNEY GENERAL AND MINISTER OF JUSTICE to BABANGIDA ADMINSTRATION.
(8) That as Attorney-General and Minister for Justice, Mr. Akpamgbo was responsible for drafting the offending Decree.

(10) That during the time when Clement Akpamgbo, SAN, was Attorney-General, renewed efforts were made by the 2nd defendants to give legal recognition to the association, but on each occasion, there were protest from the general public. That Mr. Akpamgbop, SAN knew fully well, that if the Decree were to be presented to the Armed Forces Ruling Counsel, it will be thrown out because of the several irregularities and the protest from Nigerians.

(11) That after General Babangida left office, Clement Akpamgbo, SAN continued to act as Counsel for the Government of General Abacha, which took over from General Babangida.

12. That ICAN representatives on several occasions, met with Mr. Clement Akpamgbo, SAN in his capacity as the Attorney-General and submitted a number of documents to him to show the impropriety of according legal status to ANAN.

13. That Mr. Clement Akpamgbo, SAN played mediatory roles in respect of the plaintiff’s protest against then intended promulgation of the ANAN Decree No. 76 of 1993.

14. That these documents will be used during the trial.

15. That his position persisted until towards the end of the regime of Mr. Clement Akpamgbo, SAN who kept on assuring ICAN that such a Law would not emanate from his Ministry.

16. That Mr. Clement Akpamgbo, SAN was a member of the Armed Forces Ruling Counsel (AFRC) during the Babangida Administration.

17. That surprisingly, ICAN later found that Mr. Clement Akpamgbo, SAN while assuring ICAN was secretly working towards the promulgation of the Decree and, in fact, succeeded in doing so after the AFRC could not deliberate on the matter any longer.

18. That ICAN intends to call Mr. Clement Akpamgbo, SAN as his witness to prove its case.

19. That Mr. Clement Akpamgbo, SAN knows the facts of the plaintiff’s case by virtue of his special position as the Attorney-General of the Federation who drafted the Decree.

(20) That several documents which ICAN intend to make use of, are in the possession of Mr. Clement Akpamgbo, SAN.”

At pages 116, 117, 118 and 119 of the record of appeal, Clement Obiora Akpamgbo submitted a counter-affidavit of 24 paragraphs some of them relevant in this appeal as follows:
“1. That I am not a party in this case, but counsel, briefed by the 2nd defendant, but now made a respondent in this application;

2. That I was served the application to disqualify me as said counsel by the Deputy Registrar of the 1st plaintiff/applicant, not a party in this suit;

4. That I admit paragraph 4(1) – (vi) (I) (vii), (viii), (x) of the affidavit in support. Further, that the plaintiffs/applicants have filed a statement of claim and amended statement of claim, and the 2nd defendant has filed a statement of defence, amended statement of claim as incompetent.

5. That I shall at the hearing of this application, rely on all documents in the well of the court.

9. That I admit I was Attorney General of the Federation and Minister of Justice under General Babangida’s regime from 1992 to August 1993 with Judge Ambassador Ajibola as my predecessor in office.

11. That paragraph 10 of the affidavit is false, in that Mr. Odumera, the President of the 2nd defendant tells me and I verily believe him:
(a) that the 2nd defendant was first registered under the Land Perpetual Succession Act;
(b) then, a Bill was presented to the National Assembly who got up a joint committee of the house to deliberate on the same before the army took over in 1983.
(c) that thereafter, the Bill with a memorandum was presented by Messrs Odumera and Chief Sosanya to Prince Ajibola, then the Attorney General and Minister of Justice, who did not present same to the Armed Forces Ruling Council, until he left office.

13. That paragraph 12 of the affidavit is false in that at no time during my tenure of office did any ICAN representation submit any document and or documents to me or to my Special Assistant, Awa Kalu, Esq. or Mrs. Chigoziem Eruchalu, my Confidential Secretary.

14. That paragraph 13 of the affidavit is false, in that, I am not an Accountant, nor was any disagreement brought to my notice about two According bodies in the country to assume the role of mediator.

15. That the plaintiffs are at liberty to make use of any documents at the trial, since an Attorney-General of the Federation including myself removes nothing from the official files in the Ministry any document properly numbered, on the said officers exit.

16. That paragraph 15 of the affidavit in support is false, in that, not being an Accountant or a relation, I derive no benefit assuring ICAN or the 2nd defendant of any advantages. Further, that I left office in 1994.

17. That paragraph 16 of the affidavit in support, is a half truth, in that, I was a member of Armed Forces Ruling Council for a short period, which later transformed to National Security and Defence Council.

18. That paragraph 17 of the affidavit is false and an insult to use ‘secret’ in respect of official functions. Further, that Decree 76 of 1993, was one of the several laws deliberated upon by the National Security and Defence Council and signed into law by General Babangida before the latter’s exit.

20. That paragraph 19 of the affidavit in support is false, since, I do not know the facts of the plaintiff’s case. Further, my reign as the Attorney-General of the Federation and Minister of Justice was the most hectic, time and energy sapping to concern myself with the facts of the plaintiff’s case.

21. That paragraph 20 of the affidavit is false and in answer, I repeat paragraph 14 and 18 of the counter-affidavit. Further, I do not have in my possession any ICAN’s document which they intend to use, save Decree 76 of 1993 which I dug out from my library.

22. That this application is brought in bad faith, intended to stall the taking off in time of the application to strike out the suit already before the court.

23. That it is in the interest of justice for clients and the latter’s lawyers to fight straight, and not engage in mudslinging.”

At pages 123 and 124 of the record of appeal, Awa Kalu now Attorney-General & Commissioner for Justice of Abia State served as special Assistant to C. O. Akpamgbo, SAN, then Attorney-General of the Federation from 1992 to his exit in 1994, and deposed in the under-mentioned paragraphs of his affidavit:
“4. That all through the said period, ICAN members have to my knowledge not passed any of their papers, protest documents and etc. against the legalising ANAN for onward transmission to C. O.
5. That to my knowledge, I have never arranged for any meeting between ICAN members and the said C. O. Akpamgbo, SAN, as Minister.
6. That in respect of any courtesy, official or business meetings in my schedule, I have a pre-arranged appointment with the said Minister and sit in to take notes, which I later reduce in writing. Further, that no such meeting with ICAN officials was ever arranged by me.
7. That I am surprised to read the facts averred in paragraphs 12, 18 and 20 of the affidavit. A. O. Ogunsola, Esq.”

At pages 127 and 128 of the record of appeal, the plaintiff filed reply to counter-affidavits of C. O. Akpamgbo, SAN and Awa Kalu in 9 paragraphs, mainly denying the depositions in the affidavits and re-confirmed the depositions in the supportive affidavit to disqualify C. O. Akpamgbo, SAN, counsel to 2nd defendant. Argument on the disqualifications were made before the Federal High Court Lagos by counsel for the plaintiffs. The learned counsel for 1st defendant and the learned counsel for 2nd defendant and learned senior counsel sought to be disqualified completed his argument and submissions on 24th July, 2000 with the matter adjourned to 2nd October, 2000 for reply on point of law by learned counsel for the plaintiffs’ applicants.

On 2nd October, 2000 the learned counsel for the plaintiffs intimated the Federal High Court of the motion filed on behalf of the plaintiffs for leave to file further affidavit under Order 10 rule 4 of the Federal High Court Rules and under section 6(6)(b) of the 1999 Constitution of the Federal Republic of Nigeria, by using the facts and documents sought to be tendered and marked as exhibits AA1 to AA3 in the further affidavit in the reply to submissions of learned counsel and learned senior counsel to defendants; plaintiffs filed an affidavit in support of the application and further affidavit, after that submissions of learned senior counsel to defendants and against whom the plaintiffs sought to disqualify from representing the 2nd defendant, which engaged the services of learned senior counsel to represent her legally in the action of declaratory and injunctive orders sought against the 2nd defendant. 2nd defendant did not file a counter-affidavit to the application to file further affidavit through documents to be relied upon as facts contrary to reply by learned counsel to the plaintiffs on points of law.

Full blown arguments in support and against the grant or refusal of further affidavit were made respectively by the plaintiffs and defendants with each side backing up their arguments with legal authorities. The learned Judge then took time for considerations of the arguments. On 1st March, 2001 at pages 195 to 204 of the record of appeal, the learned Judge after a review of the facts and applying them to legal authorities cited before him at pages 203 and 204 of the record of appeal observed as under:
“It seems to me, therefore, that the principle of law to be distilled from gamut of the case, referred to in this ruling is that the decision as to whether or not to admit additional evidence by way of further affidavit after argument has begun in a motion is at the sole discretion of the Court which discretion must be exercised both judicially and judiciously.

Acting ‘JUDICIALLY’ and ‘JUDICIOUSY’ was defined by the Supreme Court case of Leonard Eronini and 3 Ors (for themselves and on Behalf of Awo people of Mbieri) v. Francis Ibeuko (for himself and on behalf of Umuduru Oji Akpi family of Ebom Mbieri) (1989) 2 NWLR (Pt.101) page 46 at 60 and 61 SC that ‘ACTING JUDICIALLY’ imports the consideration of the interest of both sides of weighing them in order to arrive at a just or fair hearing.

‘Judiciously’ means
‘(a) proceeding from or showing sound judgment.
(b) having or exercising sound judgment
(c) marked by discretion, wisdom and good sense.’

Applying the above principles of law to the instant application, there is no doubt that the application by the plaintiffs/applicants counsel to adduce further affidavit was filed in this court on 2/10/00 MONTHS AFTER ARGUMENTS HAVE CLOSED ON THE MAIN APPLICATION EXCEPT for LEARNED COUNSEL for the plaintiffs/applicants TO REPLY ON POINT OF LAW. It is my understanding that in the exercise of a right of reply on points of law, ONLY POINTS OF LAW CAN BE RAISED BY COUNSEL and HE MAY NOT BE ALLOWED TO REFER TO FACTS. THIS VITAL POINT THEREFORE, in my view takes the present APPLICATION OUT OF THE CON OF THE DECISION in the case of NWEKE V. ORJI supra.

The party was still arguing motion. Learned counsel for the plaintiffs/applicants on the application to disqualify learned SAN from representing the 2nd defendants/respondents, therein, the gravemen of his argument was that the plaintiffs/applicants never annexed to any of their affidavits in support of the application, a single document which the plaintiff left with him while he was occupying the office of the Attorney General of the Federation.

Learned SAN has further submitted before me in the course of argument that NO ONE SINGLE DOCUMENT WAS EXHIBITED IN SUPPORT OF THE PRESENT APPLICATION WHEN it was filed on 2/10/00, except the further and better affidavit of the plaintiffs/applicants filed on 1/11/00 to which some documents were annexed as exhibits AA – AA3. According to paragraph 4 of the further and better affidavit of the plaintiffs/applicants.

I am therefore of the view, that the present application by the plaintiffs/applicants counsel to adduce further evidence as annexed in exhibits AA – AA3 has been prompted by the earlier submissions by learned SAN in the course of argument pointing to this omission on the part of the plaintiffs/applicants. In this regard, I MUST SAY HERE, THAT I AGREE WITH THE SUBMISSION OF LEARNED SAN THAT LITIGATION IS NOT A FENCING EXERCISE AND THAT A PARTY IN COURT MUST BRING FORTH ALL THE FACTS MATERIAL TO HIS CASE.

Based on the foregoing, it is the view of THIS COURT THAT THE PRESENT APPLICATION BY THE PLAINITFFS APPLICANTS IF GRANTED, AT THIS STAGE OF THE PROCEEDINGS WILL TEND TO OVERREACH THE PLAINTIFFS/APPLICANTS.

I am of the view, that the exercise of my discretion in the present application must, therefore, take into account, ALL THE SUROUNDING CIRCUMSTANCES of this case as highlighted herein, including INTEREST OF THE PARTIES AS WELL AS THE CONVENIENCE AND DISADVANTAGE WHICH MIGHT BE SUFFERED by any of the parties.

Having regard to all the circumstances of the present application, the equitable exercise of my discretion dictates that the present application by the plaintiffs/applicants be refused and, it is hereby refused. It is accordingly dismissed.” (Italics mine).

Obviously, the 1st and 2nd plaintiffs were dissatisfied with the ruling supra of the learned Judge of the Federal High Court, Hon. Justice E. O. Sanyaolu delivered on 1st March, 2001.
The 1st and 2nd plaintiffs lodged an appeal to this court, timeously, by filing the notice of appeal recorded at pages 153 to 156 of the record of appeal, wherein, they raised originally four grounds of appeal. In accordance with the rules and procedure of this court, 1st and 2nd plaintiffs are, hereinafter, referred to in this judgment as 1st and 2nd appellants respectively.

The notice of appeal was served on the 1st and 2nd defendants and the learned senior counsel, against whom the application to disqualify him from appearing for the defendants. The 1st and 2nd defendants and learned senior counsel aforesaid, are hereinafter, referred to in this judgment as the 1st, 2nd and 3rd respondents. After service on respondents of the notice of appeal, appellants in accordance with the rules and practice of the Court of Appeal filed appellants’ brief of argument wherein, with the leave of court, they incorporated additional grounds 5 and 6 of appeal. They furnished and supplied copious particulars.

Based on the rule of brief writing that issues for determination must derive, be based and correlate with the grounds of appeal, appellants distilled from the grounds of appeal the issues for determination in paragraphs 4.0 and 4.01 at page 9 of appellants’ brief of argument as follows:
“4.0. ISSUES FOR DETERMINATION
4.01. The appellants submit that the issues for determination in this appeal, having regard to the ruling appealed against and the ground of appeal:

ISSUE ONE
Did the learned trial Judge exercise his discretion, properly judiciously, judicially and in the interest of justice, when he refused to grant the appellants leave to file further affidavit in support of their part heard motion having regard to the materials before the trial court and the applicable legal principles. Grounds 1,2,4 and 5.

ISSUE TWO
Whether or not the learned trial Judge was right in his conclusion that the appellants’ motion for leave to file further affidavit was intended to overreach the 2nd and 3rd respondents. Ground 3.

ISSUE THREE
Whether learned trial Judge was right in his view that the decision of the court in Nweke v. Orji (1989) 2 NWLR (Pt.104) pg. 484 is not applicable, the case where the court having adjourned a part heard motion for the applicants reply on points of law. Ground 6.”

Though 1st and 2nd respondents were served with appellants’ brief of argument they did not file any respondents’ briefs. Their attitude was that the battle line was really between appellants and third respondent against whom an order of disqualification was sought to preclude him to represent 2nd respondent legally as counsel.

3rd respondent on his part after service of appellants’ brief on him filed a respondent’s brief wherein in paragraph 8 for determination as follows:

“8. ISSUES FOR DETERMINATION
Based on the grounds of appeal the issues for determination are as follows:
(1) was the learned trial Judge right, viewed from the circumstances of the case in the execution of his discretion to have dismissed the appellants application for leave to file further affidavit and make use of facts in the said further affidavit?

(2) was the learned trial Judge right, to have held that the appellants application was intended to over-reach, in view of the fact that the appellant was billed on 2/10/01 to reply on points of law?

(3) was the trial court right, to hold that the ratio in Nweke v. Orji (1989) 2 NWLR (Pt.104) page 373 is not applicable to the instant case?”

Appellants’ issues are similar and focused on the real issues germane and the crux of this appeal. Let me reiterate that this present appeal is an interlocutory appeal, consequential to appellants’ application to file further affidavits after argument and submission of 3rd respondent on the application on motion on notice of 3rd respondent’s disqualification of legal representation for 2nd respondent and to say that the application has not yet been concluded, it remains inchoate.

The three issues, each formulated by the parties are encompassed by the court as follows:
“Whether the learned Judge exercised his discretion judicially and judiciously, by order of refusal to allow appellants to file further affidavits at the stage, appellants were to reply to respondent’s submission on point of law and that the case of Nweke v. Orji (1989) 2 NWLR (Pt.104) page 373 was distinguishable, based on the facts in this case and inapplicable.”

The bone of contention of appellants and submission was that the learned Judge was granted statutory power and judicial discretion to grant leave to any party to the motion to file further affidavit once argument has commenced but uncompleted as in the instant appeal when there was no final addresses and submissions of counsel.

Where the further affidavits contain facts to enhance the applicants case or the cause of justice, as provided by Order 9 rule 28 Federal High Court (Civil Procedure) Rules 2000 as follows:
“Order 9 rule 28, where upon the hearing of any motion the court may, on such terms as to costs and adjournment as it may deem fit allow any additional affidavit to be used after affidavit has been duly filed and served on the opposite side.”

Whilst Order 10 rule 4 Federal High Court (Civil Procedure) Rules, 2000 reads as follows:
“Order 10 rule 4 ,where a special time is limited for filling affidavits, no affidavit filed after that time shall be used unless by leave of the Court or a Judge in chambers.”

Appellants submitted that the intendment or purport of the above rules are meant to ensure that parties are granted or afforded reasonable opportunities and facilities to present their cases before the court and in furtherance, decided in the four cases referred to in paragraph 5.06 of appellant’s brief of argument, which included Nweke v. Orji (1989) 2 NWLR (Pt. 104) page 484 CA. All the cases concluded that to grant or refuse further affidavit is at the discretion of the learned Judge acting judicially and judiciously as defined supra in Eronini v. Iheuko. With respect, the learned Judge applied a wrong approach of law, that the stage was too late and when appellants were yet to reply on points of law alone.

As deposed to in the counter-affidavits filed on behalf of 3rd respondent, it was absolute denial of any transaction between appellants and 3rd respondent when he was Federal Attorney-General or was there any discussion between them on the registration or incorporation of 2nd respondent and it was for this reason that respondent contended that appellants did not have any document to support the discussion and the attempt to admit exhibits AA1 to AA3 was to over-reach and forestall the respondents submission of no documentary evidence of support.

Appellants’ answer was that, after strenuous research, they discovered exhibits AA1 to AA3 to show that there were transactions between applicants and 3rd respondent on the registration or not incorporation of 2nd respondent with the hindsight, it shall be detrimental and injustice to the appellants for 3rd respondent to use the fore knowledge as former Federal Attorney General against the appellants and exhibits AA1 to AA3 were not meant to over-reach.

The learned Judge having misapplied Nweke v. Orji’s case, that the arguments on the application for leave to file further affidavits having been completed, thereby, refused to exercise the judicial discretion in favour of appellants, was based on wrong principle which allows an appellate court to interfere in the exercise of discretion by the lower court, so applying University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) page 143 SC, the court should allow the appeal.

Respondent relied on the counter-affidavits and the depositions therein. As respondent deposed, no single document was exhibited by appellants in support of the transactions, between the parties and having completed his arguments with appellants to reply on points of law that appellants filed the motion on notice, now, this subject of this appeal and tendered exhibits AA1 and AA3 was spurious and was to over-reach by forestalling respondent’s argument which was rightly refused by the learned Judge and that the application was to over-reach respondent’s submission, the grant would have been great injustice to 3rd respondent. Being exercise of judicial discretion, the learned Judge exercised his discretion properly and rightly in accordance with Order 9 rule 28 and Order 10 rule 4 Federal High Court (Civil Procedure) Rule 2000. This court as an appellate court lacks jurisdiction to interfere with rightful exercise of judicial discretion by the learned Judge.

It is acceptable principle of our law and jurisprudence that when a matter involves the exercise of judicial discretion, an authority is not binding as precedent by delimiting the exercise of judicial discretion by stating that the judicial discretion must be exercised in particular way. Each exercise of judicial discretion must depend on the facts and peculiar circumstances of each case as previous exercise of discretion is not precedent- Odusote v. Odusote (1971) 1 All NLR 219 Sc. It is for this reason, that the learned Judge was right to distinguish Stephen Nweke & Anor. v. E. D. Orji (1989) 2 NWLR (Pt.104) page 484 from the facts of the instant appeal. So, this court should reject the submission of appellants that the learned Judge was wrong in law, not to have followed Nweke’s case.

As there was no wrongful exercise of the judicial discretion by the learned Judge more especially when the application on notice to file documents AA1 to AA3 was meant to overreach as rightly found by learned Judge, appellant’s appeal lacks substance and as learned Judge distinguished Nweke’s rightly as not binding on exercise of judicial discretion, this appeal ought to be dismissed and to confirm the ruling of 1st March, 2000 by the Federal High Court, Lagos Division.
The above represents a resume of the contentions and submissions of the parties to allow or dismiss the appeal.

From the foregoing, the facts are not in dispute, in that, it was after the conclusion of submission by learned senior counsel in the application brought by appellants to disqualify the 3rd respondent from appearing as counsel for the 2nd respondent, that the matter was adjourned to 2nd October, 2000 for the learned counsel to the appellants to reply to the submission on points of law. Instead of the reply on points of law, appellants brought an application under Order 9 rule 28 and Order 10 rule 4 Federal High Court (Civil Procedure) Rule, 2000 already set out supra. The application was for leave of the learned Judge to grant appellants to file further affidavit to admit documents marked exhibits AA1- AA3 to enhance appellants case and the course of justice to base their reply on point of law by using the further affidavit. It is the refusal by the learned Judge that led to this appeal.
Order 9 rule 28 states that:
“Upon the hearing of any motion, the court ‘MAY’, on such terms as to cost and adjournment, as it ‘MAY’ deem fit, allow any additional affidavit to be used, after the affidavit has been duly filed and served on the opposite side.”

This court is, therefore, faced with the interpretation of word ‘MAY’, whether it is mandatory or directory. In the case of Erastus Obioha v. Iyibo Jio Dafe (1994) 2 NWLR (Pt. 325) page 157 at 180, 181 and 182, this court per ONALAJA, J.C.A. interpreted the word ‘MAY’ exhaustively, which was adopted and followed by OBADINA, J.C.A. in Atayi Farms Ltd. v. Nigeria Agricultural Co-operative Bank Ltd. (2) Isaac Ugbabe (2003) 4 NWLR (Pt. 810) page 427 at 447-448 stated as follows:
“The essence of interpretation of a statute is to get at the intention of the draftsman through the words actually used. In Erastus Obioha v. Iyibo Jio Dafe (1994) 2 NWLR (Pt. 325) page 157 at 180 to 181 this court per ONALAJA, J.C.A. interpreted the word ‘MAY’ as follows:
‘In the interpretation of a statute, the cardinal principle is to discover through the words used in statute, law, decree, Act and Edict, the intention of the draftsman, when the matter that calls for interpretation is a word like, in the instant appeal with word ‘MAY’, the whole section is to be read together without taking the word out of con in trying to discover the intention of the draftsman. Whenever a statute creates a duty, the first primary question to my mind for judicial decision, is what is the sanction that has been provided for its breach?. No statute creates an obligation without anticipating a breach. Is there any sanction? If there is, then it is mandatory. It is absolute. Where the court cannot interfere to compel performance or indeed punish the breach of duty, the ACT is directory- see Ifezue v. Mbadugha (1984) 1 SCNLR 427; Ijebu Ode Local Government v. Adedeji Balogun & Co. Ltd. (1991) 1 NWLR (Pt. 166) page 136 SC to interprete the word ‘MAY’, one has to look in depth into the con in which the word appears as it must be the controlling factor whether it is mandatory or directory.

Still on the word ‘MAY’, whether it is mandatory or directory or discretionary, the learned author of Black’s Law Dictionary, 5th Edition defines the word ‘MAY’ at page 863 as follows:
‘MAY’- An auxiliary verb qualifying the meaning of another verb by expressing ability, competency, liberty, permission, possibility, probability or contingency. US v. Lexington Mill & Co. 232 US 399 345 CT 337 340, 58 LED 658. Regardless of the instrument, however, whether constitution, statute, deed, contract, or whatever courts not infrequently construe ‘MAY’ as ‘SHALL’ or ‘MUST’, to the end that justice may not be the slave of grammar. However, as a general rule, the word ‘MAY’ will not be treated as a word of command, unless, there is something in con or subject-matter of act to indicate that it was used in such sense. In construction of statutes and presumably also, in construction of Federal rules, the word ‘MAY’ as opposed to ‘SHALL’ is indicative of discretion or choice, between two or more alternative, but con in which word appears must be controlling factor.’

The word ‘MAY’ was interpreted by the Supreme Court by KAYODE ESO, J.S.C. in Alhaji Chief A.B. Bakare v. A.-G., Federation & 2 Ors. (1990) 5 NWLR (Pt.152) page 516 to be directory and not mandatory. From the plethora of the judgments of the Supreme Court and Court of Appeal to interpret the word ‘MAY’, one has to look in depth into the con in which the word appears, as it must be the controlling factor, whether it is mandatory or directory.”
See further as to connotation of the word ‘MAY’ in A.-G., Abia State & Ors. (2001) 11 NWLR (Pt. 725) page 689 SC; PI & PD. Co. Ltd v. Ebhota (2001) 4 NWLR (Pt.704) page 495 CA; Kaigama v. A.-G., Borno State (2001) 16 NWLR (Pt. 738) page 94 CA.

Applying the above authorities and looking in depth to the provisions of Order 9 rule 28 and Order 10 rule 4 Federal High Court (Civil Procedure) Rules, 2000, that the word ‘MAY’ is directory and not mandatory, it therefore clothed the court with discretion in its application which must be acted upon judicially and judiciously.

Permit me to quote in extensio, the case of Stephen Nweke (Executive member and Public Relations Officer Awgu General Assembly/Town Union) (2) Peter Agozim (Secretary General Awgu General Assembly/Town Union) v. Eze V.E.D. Orji (The Egbeledi 1 of Awgu) (1989) 2 NWLR (Pt. 104) page 484 wherein UWAIFO, J.C.A. ( as he then was), at pages 489 – 490 interpreted Order 35 rule 27 of the High Court Rules applicable in Anambra State which provides and in pari materia to Order 9 rule 28 under our consideration has similar provisions:
“Order 35 rule 27
Upon the hearing of any motion, the court may on such terms, as it may deem fit, allow any affidavit to be used, although such affidavit has not been served on the opposite side, along with the notice of motion”

was interpreted and held as follows:
“1.The applicable Order 35 rule 27 of Anambra State High Court Rule does not say an affidavit filed after argument of the prevailing circumstances should be allowed to be used. I must be left to the discretion, in deserving circumstances, of the Judge, and the Order does not impose a time limit, within which any such affidavit intended to be used may be filed.

2. If a party who intends, use further affidavit, is still arguing his motion and the affidavit contains facts that will assist his case or course of justice, he should be allowed to use it.

4. If the position were to be that once a party objected to the use of further affidavit after argument has opened; the affidavit can not be used, that will unjustifiably curtail the discretion of the court contrary to the interest of justice.

5. An affidavit may be used to introduce a vital document which came to light after argument on a motion has started and the prevailing circumstance should be allowed to dictate how the trial Judge may exercise his discretion under Order 35 rule 27 of Anambra State High Court Rules.

6. Per UWAIFO, J.C.A. at page 490, para. B:
‘If Majoroh v. Fassassi (supra) was intended to curtail the discretion of the Judge simply because after argument had begun the opposite party objected to further affidavit being used, I cannot, with due respect, accept it as the law on the matter in reference to the applicable rule 27 here’.

7. The court has the discretion of allowing affidavits to be received at any time during argument, and may, in this as in all other cases regulate its own proceedings, and admit affidavits after the case has opened, if it should appear that the justice of the requires it.

8. Per UWAIFO, J.C.A. at page 492, paras. A-B:
‘The undeniable point for agreement, however, is that the discretion, whether to allow any affidavit rests with the court as occasion demands to enable him to dispense justice. In addition, I hold the view that since the court may regulate its own proceeding, it can in any particular case fix a time within which affidavits to be used in respect of any particular motion should be, in so that, the parties do not have a field day filing affidavits at any stage. But even at that, I should make it quite plain that at the discretion of the court in special circumstances, affidavit filed thereafter, may be allowed for use. This is the essence of the principles in RE Chifferiel (supra) and Hattersley’s case (supra). It will then be with leave of the court, which will be granted only if the reasons for the delay and the importance of the evidence in all the circumstances are very convincing’.

In the instant case, the further-affidavits sought to be used by the applicants do not seem to possess the quality of enhancing the case being presented in the court below. They do not show that in the interest of justice, the trial Judge was wrong to have allowed them to be used.”

I have deliberately, intentionally, and advisedly set out what was held in Nweke v. Orji’s case because its applicability and non applicability were raised in issue 3 in appellant’s brief and issue 3 in respondents’ brief as the learned Judge decided not to follow it in his ruling and also raised in the encompassed issue by this court.

My understanding of the issue on the application of Order 9 rule 28 and Order 10 rule 4 is that, as the controlling factor is that the word ‘MAY’ in this con is directory and empowered the learned Judge with judicial discretion to grant or refuse leave to admit further affidavit, in exercising the discretion, the learned Judge must act judicially and judiciously as defined in Eronini v. Iheuko (1989) 2 NWLR (Pt. 101) page 46 SC; Elendu v. Ekwoaba (1995) 3 NWLR (Pt. 386) page 704 CA confirmed by the Supreme Court in Elendu v. Ekwoaba (1998) 12 NWLR (Pt. 578) page 320 SC; Ajagungbade III v. Adeyelu II (2001) 16 NWLR (Pt.738) page 126 CA; Ntukidem v. Oko (1986) 5 NWLR (Pt. 45) 809 SC.

The exercise of judicial discretion is so wide and only limited by the court itself but with the rule of law that, however wide the discretion, no interlocutory order is used as precedent in a subsequent case in matters of discretion, each case or application is considered on its peculiar facts and circumstances Odusote v. Odusote (1971) 1 All NLR 219 at 22; Udeze v. Ononuju (2001) 3 NWLR (Pt. 700) page 216 CA; Oyekamni v. NEPA (2000) 15 NWLR (Pt. 690) 414 SC.

It is well established principle of law, that all judicial discretion must be exercised, according to common sense and according to justice, and if there is any miscarriage of justice in the exercise of such discretion, it is within the competence of an appeal court to have it reviewed- Alhaji J.A. Odutola v. Inspector Kayode (1994) 2 NWLR (Pt. 324) page 1 SC.

In considering the application, the learned Judge stated that the submissions and arguments were closed and that the stage was too late, thereby, learned Judge distinguished Nweke v. Orji’s case as not applicable in the application to admit further affidavits at page 203 of the record of appeal as underlined above in reference to the ruling of the learned Judge thus:
“To adduce further, affidavit was filed on 2/10/2000, months after arguments have CLOSED on the main application, except for learned counsel for the plaintiffs to reply only points of law can be raised by counsel and he may not be allowed to refer to facts. This vital point, therefore, in my view, the present application out of the con of the decision in the case of Nweke v. Orji (supra), where the application to use further affidavit was made, while the party was still arguing the motion.”

With reference to the learned Judge, arguments and submission were still pending, in that, learned counsel to appellants was yet to reply to 3rd respondent’s learned senior counsel on point of law, so, that was where the learned Judge derailed and misapplied the decision in Nweke v. Orji’s case and to state that it was applicable. Issue 3 in appellants’ brief of argument is meritorious and resolved in appellants favour, whilst the submission of learned senior counsel on issue 3 in respondent’s brief is hereby resolved against 3rd respondent.

The attitude of appellate court generally, towards exercise of judicial discretion by lower court is well settled under the rule in University of Lagos & Anor. v. M. I. Aigoro (1985) 1 NWLR (Pt. 1) page 143 SC that:
“The law is that except upon grounds of law, an appellate court will not reverse a discretionary order of a trial court merely because it would have exercised the discretion differently. But, if on other grounds, the order will result in injustice being done or if the discretion was wrongly exercised, in that due weight was not given to relevant considerations, the order may be reversed.”

Awani v. Erejuwa II (1976) 11 SC 307; Odusote v. Odusote (supra); Kupoliyi v. Philips (2001) 13 NWLR (Pt. 731) page 736 CA; Ogar v. James (2001) 10 NWLR (Pt. 722) page 621 CA Eze v. A.-G., Rivers State (2001) 18 NWLR (Pt. 246) 524 SC.

By holding that arguments have closed, when there was still submission yet to be made, after the application for filing of further affidavit, the learned Judge based his decision not to apply Nweke v. Orji’s case on wrong principle of law. This type of situation is an exception to the rule of law that an appellate court shall not interfere with exercise of judicial discretion by the lower court. I, therefore, re-uphold the contention, that the learned Judge did not exercise his discretion judicially and judiciously, thereby, resolve issue 1 and the encompassed issue raised by the court in favour of appellants, but against the respondent. Elendu v. Ekwoaba (supra).

In answer to issue two, whether the application was meant to over-reach or not, this has been subsumed in the consideration whether learned Judge acted judicially or judiciously.

From the foregoing, all the issues having been resolved in favour of the appellants, the appeal is allowed, the ruling of 1st March, 2001, given by the Federal High Court is hereby set aside, appellants’ application to file further affidavit is granted.

In view of the grant to appellants to file further affidavit, respondents shall be at liberty to file counter-affidavit afresh on respondent, being served with the further affidavit.

Applying section 16 Court of Appeal Act, Cap. 75, Laws of the Federation of Nigeria, 1990, the case is remitted to the Federal High Court for hearing de novo, the substantive application for disqualification of learned senior counsel with the use of the further affidavit before another Judge, not the learned Judge that gave the ruling which gave rise to this application.

Acting judicially and judiciously, I make no order of costs in the peculiar circumstances of this case.

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Other Citations: (2003)LCN/1386(CA)