BRITISH AMERICAN TOBACCO (INVEST) LTD. V. THE ATTORNEY GENERAL OF OGUN STATE & ORS.
(2011)LCN/4432(CA)
In The Court of Appeal of Nigeria
On Thursday, the 31st day of March, 2011
CA/I/251/2010
RATIO
RULES OF COURT: CIRCUMSTANCES WHERE THE COURT MAY DIRECT A DEPARTURE FROM THE RULES OF COURT OR WAIVE COMPLIANCE BY THE PARTIES WITH THESE RULES OR ANY PART THEREOF
Now, order 19 rules (2) and (3)(1) of the Rules of this Court state: “(2) The court may direct a departure from these Rules in any way this is required in the interest of justice. (3) The court may, in an exceptional, circumstance, and when it considers it in the , interest of justice so to do, waive compliance by the parties with these Rules or any part thereof.” A departure from the Rules of this court under order 19 rules (2) (supra) is usually made to avoid hardship on the parties in complying with the Rules of this court, or in some cases to save time and costs for the matter to be dealt with expeditiously in the interest of justice. Whilst waiver of noncompliance with the Rules of this court is granted in exceptional circumstances and in the interest of justice only. Both order 19 rules (2) and (3)(1) of the Rules of this court emphasise the interest of justice, an expression catering for the tripartite or trinity interest of the applicant, the respondent, and this court in respect of the present application – see Willoughby v. International Merchant Bank (Nig) Ltd. (1987) 1 SCNJ 44 at pages 59-60 thus: “Interest of Justice: what does it mean? The question of interest of justice was considered by this court in the case of Nigerian Ports Authority v. Construczioni Generator etc. (1974) 12 S.C 81 at 91. There this court was considering the question of grant of an adjournment when it observed: “….. It should always be borne in mind that the interest of justice does not mean just the interest of the applicant; it also includes the interest of the respondent and the court.” (my emphasis). See again Willoughby v. International Merchant Bank (supra) per the words of the quintessential jurist Kayode Eso, J.S.C., (as he was) at page 57 thus: “… It has been considered safest to regard justice to be done once it is according to law; and the law must necessarily include the procedure laid down for its attainment. To leave the attainment of justice at large, and ignore the rules is to establish a subjective course of action which could lead to judicial tyranny and the omnipotence of individual judges. Surely such course will end in chaos and certainly not an attainment of interest of justice according to the law of the land. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
RULES OF COURT: WHETHER A JUDGE MUST BE BOUND BY THE RULES OF COURT
A judge must be bound by rules – accepted rules made under the law of the land – in order not to leave the populace in the fear of saucy dreams of a judge, who would believe, like Humpty Dumpty that “when I say this, it must be so” And why? “Because I say so” and consider that to be in the interest of justice…”PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
EXCEPTIONAL: MEANING OF “EXCEPTIONAL”
“Exceptional” simply means “unusual” or “more than usual” – see Chambers Twentieth Century Dictionary at page 455. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
RULES OF COURT: WHETHER THE COURT CAN ALLOW WRITTEN SUBMISSIONS IN PLACE OF ORAL SUBMISSION PROVIDED FOR IN ITS RULES OF COURT
…where no specific provision is made in the Rules of the Court below for the filing of written submissions, it will be wrong for it to opt for written submissions in place of oral submissions provided for in its Rules of Court – See Uzoho v. Task Force on Hospital Management and Others (2003) FWLR (Pt.166) 606 at 614 thus: “…. the practice of lower courts inviting counsel to submit written address appears not to be favoured by judicial decisions.” It may well be so on account of the expenses involved in filing written submissions, as noted by us in the case of National Electric power Authority v. Olagunju and Another (2005) 3 NWLR (pt.913) 602 at 634 thus: “…, a better practice to court below is to take address of counsel in open court….. The direction to lawyer to file address is alien to the rules of procedure in the High Court (where no provision is made for it in the Rules of Court) and creates for the parties unnecessary expense. It should not be encouraged…..” (my emphasis). Rules of court must be obeyed, so stated the Supreme Court in Williams v. Hope Rising Voluntary Fund Society (1982) 2 SC 145. This court also had cause to hold in the case of Ibrahim v. INEC (2007) 3 EPR 50 at 65 per Salami, J.c.A., (now P.C.A.) with the concurrence of Mahmud Mohammed J.C.A. (now J.S.C) and Omage, J.C.A., (as he then was) that: “I agree with the learned counsel for appellants that parties cannot waive compliance with or whittle down the requirement of statutory provisions, which are clear and unambiguous….. The parties cannot even by agreement consent to waive compliance with statutory requirements. (my emphasis). See also Oviawe v. Integrated Rubber products Nigeria Ltd. (1997) 3 NWLR (Pt. 492) 126 at 129 and Drexel Energy v. Trans Inter Bank (2009) 15 WRN page 1. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
BRITISH AMERICAN TOBACCO (INVEST) LTD. Appellant(s)
AND
THE ATTORNEY GENERAL OF OGUN STATE & ORS. Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Lead Ruling): This is an interlocutory application dated and filed on 19.10.010, seeking for:
“AN ORDER granting the Appellant/Applicant leave to file written address in support of its motion on Notice date
19th October, 2010.
And for such further or other orders as this Honourable Court may deem fit to make in the circumstance”.
The application was moved by Mrs. Adekoya, learned Senior Advocate of Nigeria (S.A.N.), on behalf of the applicant with stress on the 7 paragraphed supporting affidavit read together with the inherent powers of this court taken with section 15 of the Court of Appeal Act, 2004, (the Act) and Order 19 rules (2) and 3(1) of the Court of Appeal Rules, 2007, (the Rules of this Court) to submit that by order 7 rule 9 of the Rules of this Court the time frame of thirty (30) minutes allocated for oral submissions in respect of interlocutory applications would be inadequate or insufficient to exhaust and do justice to the extensive arguments intended to be made on the Motion on Notice as stated on the motion paper (supra), Therefore, an order granting a departure from order 7 rule 9 of the Rules of this Court should be made in order to accommodate and hear the said motion on written submissions. Learned senior counsel concluded by advocating for a grant of the application, as to do so, according to her, shall save the time of the Court.
The uncontradicted affidavit evidence supporting the application stated:
“1. I am a Legal Practitioner in the Law Firm of AELEX, solicitors to the Appellant/Applicant and by virtue of which I am conversant with the facts deposed herein.
2. I have the authority of my employer as well as the Appellant/Applicant to depose to this Affidavit and the facts deposed to herein are within my personal knowledge except where otherwise stated.
3. On 1st September, 2010, the Record of Appeal (in the appeal filed by the Appellant/Applicant against the ruling, dated 20th May 2010, of the Honourable Justice O. Olopade of the High Court of Ogun State (the “lower Court”) in Suit No.AB/6U2008) was transmitted to the Court of Appeal.
4. On 19th October 2010, the Appellant/Applicant filed an application of the same date seeking an order of this Honourable Court staying the proceedings in the lower Court pending the determination of this appeal. A copy of this application is attached herewith as Exhibit W1.
5. In the light of the extensive arguments which the Appellant/Applicant intends to proffer in support of the said application for stay of proceedings, it proposes to file a Written Address in lieu of oral submissions so as to save the time of this Honourable Court.
6. In the light of paragraph 5 above, the Appellant/Applicant seeks leave of this Honourable Court to file the said Written Address.
7. I make this solemn oath conscientiously , believing the same to be true and by virtue of the provisions of the Oath Act. Cap.01. Laws of the Federation of Nigeria. 2004.”
The above copied affidavit evidence establish per adventure that the time limit under order 7 rule 9 of the Rules of this Court for applicant to present full arguments on the said pending motion of “complexity”, to borrow learned senior counsel for applicant’s word, occasioned the filing of this application.
Since the present application and the arguments proffered on it by learned senior counsel for applicant are substantially on the same plane with the motion argued by Mr. Elias, learned senior counsel for applicant in appeal No.CA/I/254/2010, I crave indulgence, to follow my analysis of the application in the latter motion in respect of this motion.
Now, order 19 rules (2) and (3)(1) of the Rules of this Court state:
“(2) The court may direct a departure from these Rules in any way this is required in the interest of justice.
(3) The court may, in an exceptional, circumstance, and when it considers it in the , interest of justice so to do, waive compliance by the parties with these Rules or any part thereof.”
A departure from the Rules of this court under order 19 rules (2) (supra) is usually made to avoid hardship on the parties in complying with the Rules of this court, or in some cases to save time and costs for the matter to be dealt with expeditiously in the interest of justice. Whilst waiver of noncompliance with the Rules of this court is granted in exceptional circumstances and in the interest of justice only.
Both order 19 rules (2) and (3)(1) of the Rules of this court emphasise the interest of justice, an expression catering for the tripartite or trinity interest of the applicant, the respondent, and this court in respect of the present application – see Willoughby v. International Merchant Bank (Nig) Ltd. (1987) 1 SCNJ 44 at pages 59-60 thus:
“Interest of Justice: what does it mean? The question of interest of justice was considered by this court in the case of Nigerian Ports Authority v. Construczioni Generator etc. (1974) 12 S.C 81 at 91. There this court was considering the question of grant of an adjournment when it observed:
“….. It should always be borne in mind that the interest of justice does not mean just the interest of the applicant; it also includes the interest of the respondent and the court.”
(my emphasis).
See again Willoughby v. International Merchant Bank (supra) per the words of the quintessential jurist Kayode Eso, J.S.C., (as he was) at page 57 thus:
“… It has been considered safest to regard justice to be done once it is according to law; and the law must necessarily include the procedure laid down for its attainment. To leave the attainment of justice at large, and ignore the rules is to establish a subjective course of action which could lead to judicial tyranny and the omnipotence of individual judges. Surely such course will end in chaos and certainly not an attainment of interest of justice according to the law of the land.
A judge must be bound by rules – accepted rules made under the law of the land – in order not to leave the populace in the fear of saucy dreams of a judge, who would believe, like Humpty Dumpty that “when I say this, it must be so” And why? “Because I say so” and consider that to be in the interest of justice…”
The interest of both parties evinced in this application is better served if written submissions are allowed. It remains to consider, later, the interest of the Court. As for the use of order 19 rule (3)(1) of the Rules of this Court, the phrase “exceptional circumstance” appearing therein would count in considering whether to grant the application. “Exceptional” simply means “unusual” or “more than usual” – see Chambers Twentieth Century Dictionary at page 455.
By order 7 rule 9 of the Rules of this court, all written interlocutory applications shall be argued orally within thirty (30) minutes. For ease of appreciation it provides thus:
“Except with the leave of court, maximum of thirty minutes on each side will be allowed for oral argument on any application.” (my emphasis).
The underlined words (supra), in my modest view, permit the Court to grant leave by adding time, upon oral application, in the course of arguments, to any of the parties faced with time constraint to present arguments fully within the thirty minutes allowed by the said order 7 rules 9 of the Rules of this Court. There is, also, order 9 rules 10(1) of the Rules of this court complementing the underlined opening portion of order 7 rule 9 (supra) to wit:
“The court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except the filing of notice of intention not to contest an application under Rule 8 above.” (my emphasis).
The fear of applicant that the complexity of the matter to be argued on the motion for stay of proceedings, which is the main plank of the present application, is therefore allayed or remedied by the combined force of the lee – way for the enlargement of time to comply with the Rules of this Court under the in-built underlined opening part of order 7 rule 9 and, order 7 rule 10(1) of the Rules of this Court (supra). A departure or waiver of order 7 rule 9 under order 19 rules (2) and (3) of the Rules of this Court is, accordingly, unnecessary having regard to the safety gadget or self-serving facility in order 7 rules 9 and 10(1) of the Rules of this Court (supra), upon which applicants may fall back or resort to, in the event the time provided for oral arguments on the interlocutory application under order 7 rule 9 (supra) is insufficient or not enough to exhaust the application. Enough on the Rules of this Court.
Section 15 of the Act provides:
“The court may from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify the findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken and, generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as a court of first instance and may hear the case in whole or in part or may remit it to the court below for the purpose of such re-hearing or may give since other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or, in the case of an appeal from the court below, in that court’s appellate jurisdiction, order the case to be reheard by a court of competent jurisdiction.” (my emphasis).Sprawling in scope as section 15 of the Act (supra) may appear to be, it does not, with maximum deference to applicant’s learned senior counsel, seem to empower this Court to forsake its express domestic Rules in favour of the Rules of the Court below. In my modest view, section 15 of the Act (supra) deals in the main with the general powers of this Court in respect of the substantive appeal before it and, in respect of how best to preserve and protect the res of the substantive appeal, in the interim, pending the determination of the appeal – see Ejowhomu v. Edok-Eter Mandilas Ltd. (1986) 5.NWLR (Pt.39) page 1. It cannot, again, with maximum deference to applicant’s learned senior counsel, be deployed in utter disregard of the express and specific provision of the Rules of this court in preference for the Rules of the court below in the prosecution of an interlocutory application in this Court.
Moreover, there appears to be no provision for written submissions in interlocutory applications in orders 8 and 9 of the High court (civil Procedure) Rules of the Ogun state as contained in the Laws of Ogun State of Nigeria, 2006, volume 2, at pages H-111 to H-l15 thereof, dealing with interlocutory applications and, applicable to the court below.
Consequently, this court cannot fall back on the Rules of the court below in the circumstance, as advocated by learned senior counsel for the applicant.
Also, where no specific provision is made in the Rules of the Court below for the filing of written submissions, it will be wrong for it to opt for written submissions in place of oral submissions provided for in its Rules of Court – See Uzoho v. Task Force on Hospital Management and Others (2003) FWLR (Pt.166) 606 at 614 thus:
“…. the practice of lower courts inviting counsel to submit written address appears not to be favoured by judicial decisions.”
It may well be so on account of the expenses involved in filing written submissions, as noted by us in the case of National Electric power Authority v. Olagunju and Another (2005) 3 NWLR (pt.913) 602 at 634 thus:
“…, a better practice to court below is to take address of counsel in open court….. The direction to lawyer to file address is alien to the rules of procedure in the High Court (where no provision is made for it in the Rules of Court) and creates for the parties unnecessary expense. It should not be encouraged…..” (my emphasis).
Rules of court must be obeyed, so stated the Supreme Court in Williams v. Hope Rising Voluntary Fund Society (1982) 2 SC 145.
This court also had cause to hold in the case of Ibrahim v. INEC (2007) 3 EPR 50 at 65 per Salami, J.C.A., (now P.C.A.) with the concurrence of Mahmud Mohammed J.C.A. (now J.S.C) and Omage, J.C.A., (as he then was) that:
“I agree with the learned counsel for appellants that parties cannot waive compliance with or whittle down the requirement of statutory provisions, which are clear and unambiguous….. The parties cannot even by agreement consent to waive compliance with statutory requirements. (my emphasis).
See also Oviawe v. Integrated Rubber products Nigeria Ltd. (1997) 3 NWLR (Pt. 492) 126 at 129 and Drexel Energy v. Trans Inter Bank (2009) 15 WRN page 1.
The Rules of this Court, as amended in 2007, were made pursuant to section 248 of the constitution of the Federal Republic of Nigeria, 1999, (or the 1999 constitution) vesting them with constitutional flavor or strength – see Kalu v. Odili (1992) 6 SCNJ 76. Where written submissions are required like the filing of briefs of argument in substantive appeals under order 17 of the Rules of this court, the Rules expressly so provide and, where oral submissions in contradistinction to written submissions are required, as in respect of interlocutory applications, under order 7 rules 9 of the said Rules (supra), such has been expressly stated. There is no gap or vacuum left to fill in such circumstances. And, in my modest view, the golden rule of interpretation of written instruments or statutory provisions to the effect that the express mention of one thing is the express exclusion of the other, (expressio unius est exclusio alterus, in latin) would apply to (Pt.80) 280 at 309(F), and Tofi v. Uba (1987) 3 NWLR (pt.62) 707 at 723(D).
Time is a precious natural resource. It requires proper and efficient management for the enhancement of productivity. For courts of law, time is very important. Because litigants go to court expecting quick results from fair and expeditious determination of their disputes. So, it is imperative for the court to be in control of time and to manage it prudently, for the purpose of attending to more important schedules respecting substantive matters than to be bogged down taking time consuming arguments on interlocutory matters which are expected to be dealt with, in appropriate cases, on the spot or brevi manu by Bench Rulings,
I strongly believe the deliberate provision in order 7 rule 9 of the Rules of this Court (supra) is to allow leverage for the Court to control or manage and regulate time fairly and equitably in attending to interlocutory applications without jeopardising the allocation of time for timely determination of pending substantive matters and; at the same time, foster flourish of oral advocacy, the glamour of the Legal profession.
To grant the application would, in my modest view, defeat the very purpose of affording parties at litigation fair hearing within a reasonable time vis-a-vis the competing business of the court in respect of substantive matters, moreso the said /Rule of Court, does not, appear to offend the 1999 constitution or an Act of the National Assembly, as it is intended to save public time.
It is for the above given reasons that I, most respectfully, find no merit in the application and hereby dismiss it without costs.
SIDI DAUDA BAGE, J.C.A.: I have had the preview of the Ruling just delivered by my learned brother, J.S. IKYEGH, J.C.A.
I agree with the reasonings and conclusions reached. I adopt same as mine; the application fails for lacking in merit and same is dismissed by me. I abide with consequential orders made in the said
MODUPE FASANMI, J.C.A: I have had the advantage of reading in advance the ruling of my learned brother J. S. Ikyegh, J. C. A. All the issues submitted for the determination of the application have been admirably and comprehensively dealt with,
I agree entirely with the reasoning and conclusion reached therein. I also dismiss the application and abide with the consequential order made.
Appearances
Mrs. F. Adekoya S.A.N., (with Mrs. I. Haastrup)For Appellant
AND
Miss L. Mesanyete (with Miss D. Ewedemi)
Mr. P. Agboola
Mr. A. O. Awe
Mr. G. Elias, S.A.N., (with Mr. Adewale)For Respondent
