Irenuma Odiase & Anor V. Vincent Agho & Ors. (1972) LLJR-SC
Irenuma Odiase & Anor V. Vincent Agho & Ors. (1972)
LawGlobal-Hub Lead Judgment Report
LEWIS, J.S.C.
In Suit B/18/68 in the Benin High Court, the plaintiffs filed an originating summons in the following terms:-
“IN THE MATTER OF THE CONSTRUCTION OF DOCUMENTS IN THE MATTER OF THE LOCAL GOVERNMENT LAW (CAP. 68) SECTION 13. IN THE MATTER OF INQUIRY INTO WARD BOUNDARY DISPUTES. IN THE MATTER OF THE FINDING OF THE LOCAL GOVERNMENT ADVISER.
ORIGINATING SUMMONS
ORDER 5, RULE 4 OF THE RULES OF THE SUPREME COURT OF ENGLAND, 1965.
Let all parties (that is to say the Plaintiffs and the Defendants herein) attend the Judge at the High Court of Justice, Benin City on the 12th day of July, 1968 at the hour of 9O’clock in the forenoon or so soon thereafter as counsel may be heard on behalf of the plaintiffs herein for:-
A. A Judicial Construction of “The Moat” as appears in the documents marked Exhibits “AA”, “BB” and “CC” attached to this Summons having regard to the following:-
(i) Reference is made to two moats in Exhibit “AA” whereas Exhibit “BB” only refers to “the moat”;
(ii) The Local Government Adviser’s reasoning in Exhibit “AA” reference paragraphs 2, 3, 12,13,15,16 and 17 is inconsistent with his explanation in Exhibit “CC”;
(iii) “The moat” as appears in paragraph 17 of Exhibit “AA” and in Exhibit “BB” is none other than the moat referred to in paragraphs 12, 13, 14 and 15 of Exhibit “AA”:
B. A declaration as to whether on the facts found by the Local Government Adviser in Exhibit “AA” and his ruling therein, his subsequent ruling in Exhibit “CC” is correct having regard to the combined effect of the facts and ruling in Exhibits “AA” and “BB”.
C. A declaration that the ruling of the Local Government Adviser as contained in Exhibit “CC” is inconsistent with his opinion in Exhibit “AA” especially having regard to:-
(1) his finding in Exhibit “AA” in paragraph 14 thereof;
(2) To his finding in respect of Ward boundary dispute between Wards 1 to 43B reference paragraph 13 of Exhibit “A”.
On the 31st of January, 1969 Ighodaro, Ag. J. (as he then was), gave judgment in which he held that the plaintiffs were in error in not joining the Benin City Council as a party, and in his view they had not done so because if they had been so sued, the matter would have been time barred as against the Council; he further held that the 3rd defendant was not properly sued; he also held that there was no question of law to be decided as all that the Local Government Adviser, Mr. Egbuiwe, did in his letter (Exhibit “CC”) was to remove an ambiguity in his earlier ruling in Exhibit “AA” finally he held that the relief sought to declare Exhibit “CC” null and void was not a proper matter for an originating summons.
Four grounds of appeal were filed on behalf of the plaintiffs/appellants attacking the various findings of the learned trial Judge to which we have referred in the following terms:-
“1. The learned trial Judge erred in law in his application of Sections 246, 13(4) and 13(6) of the Local Govt. Law (Cap. 68), Laws of Western Region of Nigeria when he held that the Council should be a necessary party in an action brought against the Local Government Adviser in respect of the exercise of his powers under Section 13(4) of the said law.
- The learned trial Judge’s reference to paragraph 5 alone of Exhibit “CC” in holding that the Local Government Adviser was not deciding a “land dispute” is a misdirection or non-direction because in view of paragraphs 2, 3, 11, 12, 13, 15, 16 and 17 of Exhibit “AA”, it is apparent that the Local Govt. Adviser was acting ultra vires or in excess of jurisdiction when he held in paragraph 4 of Exhibit “CC” that ‘Although it is generally agreed that the first moat is the dividing line between the wards within Benin City and those outside it, I hold that a Local Government Adviser’s ruling shall not lead to anarchy or chaos, vide paragraph 15 of the report’, and concluded in paragraph 5 thereof to avoid the confusion that may arise I have ruled that the boundary shall be the Moat beyond the Uzebu Camps previously referred to in this report as the second Moat and along which the Benin City Town Planning Authority has planted its sign post.
- The learned trial Judge erred in law when he refused to grant a declaration sought in this action brought by originating summons:
(a) By holding that the use of originating summons in the action before him was an invocation of his appellate jurisdiction whereas the decision of the Local Government Adviser was challenged on the issue of ultra vires or excess of jurisdiction which he can properly adjudicate upon in an action brought by originating summons;
(b) When he failed to realise that the issue before him did not call for any substantial dispute of fact having regard to the documents before him;
(c) When the issues were solely those of law namely:-
(i) Whether or not the Local Government Adviser acted ultra vires or in excess of jurisdiction having regard to paragraphs 2, 3, 11, 12, 13, 14, 15, 16 and 17 of Exhibit “AA” and Section 13(6) of the Local Government Law;
(ii) the construction of Exhibit “AA” in reference to the ambiguity therein as regards the use of the words “the moat”.
- That the decision is against the weight of evidence”
Chief Williams on behalf of the appellants addressed us extensively and learnedly on the fourth ground of appeal namely that the decision was against the weight of evidence, submitting that the plaintiffs were in effect by their originating summons asking for a declaration that Exhibit “AA” was the final determination of Local Government Adviser, Mr. Egbuiwe, and that when he came to make Exhibit “CC” he was functus officio so that Exhibit “CC” was null and void and should not have been looked at or relied on. Alternatively he argued that looking at Exhibit “AA” as a whole, the expression “the moat” which was in issue, was not ambiguous but its true purport and intent could be clearly derived from the contents of Exhibit “AA” so there was no justification for the Local Government Adviser making Exhibit “CC” which, far from confirming Exhibit “AA” as he said, in fact, in Chief Williams submission, was a reversal of his earlier finding. Chief Williams having, as we have said, argued that point extensively, rested appeal before us on his submission thereon and did not seem fit to argue the other grounds of appeal filed, attacking the other reasons which the learned trial Judge gave for his decision in dismissing the action.
Mr. Ajayi for the respondents then submitted to us that even if this court was in favour of the argument put forward by Chief Williams, though he sought to argue to the contrary, nonetheless the appellants could not succeed in upsetting the decision of the learned trial Judge on that argument alone as the learned trial Judge did not rest his decision on that basis alone, but also gave the various other reasons that we have already set out and which were not attacked in argument before us.
Chief Williams in reply then sought leave to argue the other grounds of appeal originally filed, submitting that he now saw he ought not to have rested the appeal on the 4th ground of appeal filed alone but should have argued the other grounds of appeal, and he relied on Ojikutu v. Odeh (1954) 14 WACA 640, as showing that it would be unjust to hold the appellants to a blunder of counsel, as the West African Court of Appeal there put it relying on Collins v. The Vestry of Paddington (1880) 5 QBD 368 at 381. Ojikutu v. Odeh (supra) pertained to an error only of failing to file an affidavit explaining the failure to file notice of intention to defend and an affidavit in time, whilst Collins v. The Vestry of Paddington (supra), pertained to a blunder in Interlocutory proceedings, but also (notwithstanding the general principle enunciated by Thesiger LJ., at page 381 and relied on in the judgment of Foster-Sutton P., in the West African Court of Appeal in Ojikutu v. Odeh (supra), at page 641) in fact the English Court of Appeal there refused in the end the application before it and so did not in fact allow the blunder to be rectified. Thus these two cases are totally different in principle to errors, if they be such, arising as to the conduct of the argument of an appeal before the Supreme Court. It is common practice for counsel to file many grounds of appeal but when the appeal comes to hearing to seek on further reflection only to argue and rely on some of them. Here, Chief Williams’ attention was specifically drawn by this court in the course of his address to the fact that his extensive argument could only have been adduced to this court within the terms of the 4th ground of appeal filed but he nonetheless chose to continue to argue on that basis alone and then to rest his case there. It is much too late thereafter when counsel for the respondents had answered the appellants’ argument for him then to seek other grounds of appeal that earlier for his own good reasons elected not to argue. Counsel having made his election of the basis upon which he is going to argue the appeal, cannot resile from that position, after listening to respondents’ counsel, and then seek leave to argue grounds of appeal which he elected earlier not to pursue because he thinks respondents’ counsel has advanced convincing submissions on the appeal as argued on behalf of appellants.
Chief Williams also relied on Whall v. Bulman (1953) 2 QB 198 in particular on Denning L.J., at page 202 as showing that an appeal court can take points suo motu, though it is to be noted that the point taken suo motu there was that parties could not agree on false hypothesis and ask the court to adjudicate upon it. Finally, in his submission, an appeal court should not uphold an obviously wrong decision and so confirm bad law because the point was not taken before it.
That, however, is not the position at all as we see it. When a judgment is delivered in a lower court, here the High Court, it is presumed on appeal to be correct until the contrary is shown. This court is certainly entitled in its discretion to take points suo motu if it sees fit to do so, but it is not the normal practice, and it is done only if we think in the special circumstances of the case that justice demands it, such as on a fundamental issue as to whether the trial court had jurisdiction. Normally if there is an appeal against a judgment on one point then the appeal stands or fails on that one point. When we give judgment on that point we have not pronounced on points not argued and, though they rest as part of the decision of the High Court, they remain open to argument as points of law in any other future appeal before us unfettered by any pronouncement of this court as to their validity. It is moreover important to appreciate this as it is only the ratio decidendi of a decision of this court that binds all lower courts, and the House of Lords has only just had cause to reprove the Court of Appeal in England for seeking to say a decision of the House of Lords, the final appellate court in England just as this court is in Nigeria, was given per incuriam when it was in fact bound by the decision of the House of Lords. See Cassell & Co. Ltd. v. Broome, Times Law Report of February 23rd, 1972.
Indeed we would agree in principle with the general proposition enunciated by Lord Wrenbury in Wilson v. United Counties Bank Ltd. (1920) AC 102 when at page 143 he said:-
“It is certainly a salutary principle that a court of justice should confine itself to educating upon the question raised by the parties litigant to the exclusion of other questions which they do not advance.”
Here it is clear to us that even if we were in favour of Chief Williams’ argument on the 4th ground of appeal, the appellants could not succeed on the appeal as such as the argument adduced attacked only one of the reasons given by the learned trial Judge for dismissing the action which we have already set out. We therefore see no reason to enter in the present appeal into what would amount to an academic pursuit of determining whether Chief Williams’ argument on the ground of appeal which he argued is correct, as, even if we were with him, the appeal on that basis alone could not, in our view, in any circumstances succeed.
It seems to us however that the main reason that the learned trial not a proper procedure to determine the question in issue and as that was not attacked in argument before us it is presumed to be correct, though we make no pronouncement in regard to it, and we are of the view that, in fairness to the plaintiffs, if it was indeed essentially because the wrong procedure was adopted but otherwise they might have had a good cause of action that the learned trial Judge dismissed the action, the better course for him to have adopted would have been for him to strike out the action.
Whilst therefore we are not prepared to look into the validity of the other reasons which the learned trial Judge gave for dismissing the action, when they have not been attacked before us, and no argument has been addressed before us on them, so that as they are presumed to be correct, whether or not they in fact be so, they stand for the purposes of the judgment of the High Court, though without in any way being determined as points of law in this court, we are willing to substitute for the order of dismissal an order striking out the action but the order as to costs in the High Court of 55 guineas to the 1st and 2nd defendants/respondents and 25 guineas to the 3rd defendant/respondent will stand and, we do so order accordingly. Subject to that order the appeal is dismissed with 45 guineas costs to the 1st and 2nd defendant/respondents and 45 guineas costs to the 3rd defendants/respondents.
SC.337/1969