SUDAN INTERIOR MISSION V. CHIEF STEPHEN BINUYO ADEWUMI & ANOR
(2012)LCN/5755(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of December, 2012
CA/I/179/2008
RATIO
PROCEDURE: PRINCIPLE GUIDING THE GRANT OF AN APPLICATION TO ADD TO THE RECORDS OF A COURT
An application to add to the records of a Court is not one that is granted for the asking. In the case of G.B.A Akinyede & Ors v. Y. M Opere & Ors. (1967) 1 ALL N.L.R P. 302 at 303 the Supreme Court resisted such an attempt. The applicant sought to vary the records of the Court by a motion for leave to call additional evidence to correct the trial Judge’s record, complaining that two pages in his notes did not correctly record the evidence given by one of their witnesses,…
The apex court in refusing the application held that:-
Although the record, at most a summary in narrative form of what the judge understood the witness to say, may be to some extent inaccurate or incomplete, there was insufficient evidence before the court to prove the applicants’ version of what the witness said, and the court could not justifiably expunge the evidence already taken by the judge and hear the witness afresh.”
We are bound by the wisdom of the ultimate Court and must resist, resolutely, this clear attempt at blackmailing a Judicial officer as a palpable act of mischief. PER M.B. DONGBAN-MENSEM, J.C.A.
LEGAL PRACTITIONER: DUTY OF AN ADVOCATE
With great nostalgia and trepidation I shall refer here extensively to the grace, glamour and dignity ascribed to our profession in the good old days. It was in the case of RONDEL V. W. (1966) All E. L. R pg. 674 at g-h
COURT OF APPEAL, CIVIL DIVISION (Lord Denning, M. R., Danckwerts and Salmon, L.JJ.), June 13, 14, 15, 16, October 20, 1966.)
“As an advocate he is a minister of justice equally with the judge.
He has a monopoly of audience in the higher courts. No-one save he can address the judge, unless it be a litigant in person. This carries with it a corresponding responsibility, A barrister cannot pick or choose his clients. He is bound to accept a brief for any man who comes before the courts. No matter how great a rascal the man may be. No matter how given to complaining. No matter how undeserving or unpopular his cause. The barrister must defend him to the end. Provided only that he is paid a proper fee, or in the case of a dock brief, a nominal fee. He must accept the brief and do all he honourably can on behalf of his client.
I say “all he honourably can”‘ because his duty is not only to his client. He has a duty to the court which is paramount. It is a mistake to suppose that he is the mouthpiece of his client to say what he wants: or his tool to do what he directs. He is none of these things.
He owes allegiance to a higher cause. It is the cause of truth and justice. He must not consciously mis-state the facts. He must not knowingly conceal the truth. He must not unjustly make a charge of fraud, that is, without evidence to support it. He must produce all the relevant authorities, even those that are against him. He must see that his client discloses, if ordered, the relevant documents, even those that are fatal to his case. He must disregard the most specific instructions of his client, if they conflict with his duty to the court. The code which requires a barrister to do all this is not a code of law. It is a code of honour. If he breaks it, he is offending against the rules of the profession and is subject to its discipline; but he cannot be sued in a court of law. (Emphasis mine).
The dictum of Salmon L. J is equally emphatic on the duty of the learned Counsel to the court: –
“This court in which we sit is a temple of justice; and the advocates at the Bar as well as the judge upon the Bench are equally ministers in that temple. The object of all equally should be the attainment of justice; now justice is only to be reached through the ascertainment of the truth… but we are all together concerned in this search for the truth (The advocate) gives to his client the benefit of his learning, his talents and his judgment; but… he never forgets what he owes to himself and to others. He will not knowingly misstate the law. He will ever bear in mind that if he be retained and remunerated for his services, yet he has a prior and perpetual retainer on behalf of truth and justice.”
Per Salmon L. J at pg.673. PER M.B. DONGBAN-MENSEM, J.C.A.
JUSTICES
M.B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
SUDAN INTERIOR MISSION Appellant(s)
AND
1. CHIEF STEPHEN BINUYO ADEWUMI
2. AYO ADEWUMI Respondent(s)
M.B. DONGBAN-MENSEM, J.C.A. (Delivering the Lead Ruling): The applicant had filed a motion on the 27/05/11 seeking reliefs of this Court as followings:-
1. An order declaring the records of Appeal compiled and transmitted to this honourable court by the registrar of the lower court as incomplete in view of the missing Ruling of the honourable trial Judge delivered on 10/11/04 in respect of the Appellant’s application dated 29/11/04 and 4/11/04.
2. An order affirming that the Honourable trial Judge K. A. Jimoh refused the Appellant’s said application dated 29/11/04 and 4/11/04 in suit No. 1/178/2000 on the ground that he is functus officio and cannot set aside his own order closing the case of the Applicant.
3. An order adopting the Applicant’s Counsel file notes of the ruling of the honourable trial Court annexed as Exhibit B.0.5 as forming part of the records for the purpose of this appeal.
4. An order granting leave to the Appellant/Applicant to amend its Notice of Appeal to reflect an additional ground of Appeal.
5. And for such further order or other orders as this honourable court may deem fit to make in the circumstances.
An affidavit of 16 paragraph was filed, to which were annexed exhibits B01, B02, B03, B04, B05, B06 & B07.
An affidavit challenging the records of appeal compiled and transmitted by the Oyo State High Court, Ibadan was also filed on the 14/04/11. Annexed to the said affidavit are Exhibits 001, 002, 003 & 004.
The motion was argued and reserved for Ruling on 02/10/12. It fell on me to write the lead Ruling in the said motion. In the process of writing the Ruling, it became incumbent on me to peruse page 128 which had been put in focus and on which issues were joined by the parties. I observed that there was no page 128 as so numbered. There was however a page 129 so numbered and bearing the Judgment of the Court. The said page 128 of the records being challenged is hereby reproduced:
“IN THE HIGH COURT OF JUSTICE
OYO STATE OF NIGERIA
IN THE IBADAN JUDICIAL DIVISION
HOLDEN AT IBADAN
BEFORE THE HONOURABLE JUSTICE K. A JIMOH-JUDGE
DELIVERED ON WEDNESDAY THE 10TH DAY OF NOV. 04
BETWEEN:
CHIEF S. B ADEWUMI PLAINTIFF
AND
SUDAN INTERIOR MISSION DEFENDANTS
AYO ADEWUMI
ADEYEMI MUILI ADEWUMI
Parties are present except 1st defendant Kazeem Gbadamosi for the plaintiff Chief Derin Ogundeji appears with Oladimeji
A. O ITUAH
for 1st defendant
JUDGMENT
This case has a chequerer history. First the case was instituted by an originating summons. It was the 1st defendant that was sued then.
But by an application dated 28th December, 2000 the 2nd and 3rd defendants applied to be joined as co-defendants…”
The said judgment ended on page 151 which said page is hereby reproduced also for the ease of reference.
“… Constitute or amounts to breach or non-observance of the covenants or/conditions on the part of the 1st Defendant (Lease) to be performed or observed as agreed upon in the provision as contained at paragraph 3 (a) of the DEED OF LEASE DATED 24TH DAY OF AUGUST, 1954 AND REGISTERED AS NO. 31 AT PAGE 31 IN VOLUME 87 OF THE REGISTER OF DEEDS, AT THE LANDS REGISTRY IN THE OFFICE AT IBADAN.
(B) Declaration that non-payment of the said rent does constitute or amount to a breach or non-observance, of the covenants or conditions on the part of the 1st defendant (Lessee) to be performed or observed, the term thereby created upon the lease has ceased and determine as to entitle the plaintiff (Lessor) to avail himself of the power of Re-entry upon the premises conferred upon him by the provision as contained at paragraph 3 (a) of the said DEED OF LEASE (under reference).
(C) An order granting a right of re-entry to the plaintiff
I award N10, 000,00 against the 1st defendant. I award N500.00 costs against each of the 2nd and 3rd defendant.
HON. JUSTICE K. A. JIMOH
10/11/2004
CERTIFIED TRUE COPY
SENIOR/ PRIN. REGISTRAR
APPEAL SECTION”
The said page bears the signature of the learned trial Judge above the name of his lordship and is dully dated 10/11/2004.
There is however a page, interposed/inserted in between pg 127 & 129, in different type of paper, different typeset and the signature column significantly different from what is on page 151 of the records.
Another curious feature is that there are remnants of the original page 128 still hanging in between page 129 and the new unnumbered page between pages 127 and 129. The said unnumbered page is also gummed to the edge of page 127 in a manner quite distinct and different from the other pages which are in single filling and can easily be detached.
The learned Counsel were re-called by a notice of hearing to address the Court on the strange state of the records.
All the records in Court were examined by the bench and all the learned Counsel for the parties. While the learned Counsel for the Applicant found nothing amidst with the state of the record, the learned Counsel for the Respondents observed that the paper and type print on the page inserted between pages 127 and 129 were different.
Page 128, per the argument of the Applicant is supposed to bear the Ruling which was delivered along with the Judgment by the learned trial Judge, on the 10/11/2004. The alien page inserted in place of the original page 128 bears some features worthy of reproduction. The said page is as follows:-
“HOLDEN AT IBADAN
BEFORE THE HONOURABLE JUSTICE K. A JIMOH-JUDGE
THIS WEDNESDAY THE 10TH DAY OF NOVEMBER, 2004
SUIT No. I/728/2000
BETWEEN:
CHIEF S. B ADEWUMI – PLAINTIFF
AND
SUDAN INTERIOR MISSION – DEFENDANTS
………………………………..
Parties are present except 3rd defendant.
Akinsunbo Akande holds Gbadamosi’s brief for O. O. Omole for 1st defendant.
F. O. Oladimeji holds Ogundeji’s brief for 2nd and 3rd defendants
Ruling and Judgment
Mr. Ajande ask for N10,000.00 cost Mr. Omole leaves the issue for costs to the Court. Mr, Oladimeji also leaves the issue of costs to the Court.
Court:- I award N2,500.00 as costs against the 1st defendants.
I award N500.00 cost against each of the 2nd and 3rd defendant.
(sgd) HON. JUSTICE K. A JIMOH
JUDGE
10/11/2004”
Now, why would the learned Judge record the presence of learned Counsel twice allegedly on page 128 and 129 after indicating that Ruling and Judgment would be taken between the same parties? On page 129 is the 1st page of the Judgment, the learned Counsel who were actually in Court were recorded. We agree with the submission of the learned Counsel for the 1st Respondent that O. O. Omole of learned Counsel, who is said to have been in Court taking records while the learned trial Judge allegedly read both the Ruling and the Judgment, was in fact not in Court. On the unnumbered page one Akinsunbo is recorded as “holding Gbadamosi’s brief for O.O. Omole for the 1st Defendant..’
means?
These pieces of oddities are indicative of an adulteration of the record, particularly page 128 which has been severed out and replaced with a doctored unnumbered page. In spite of the obvious difference and suspicion of interference with the records, the learned Counsel for the Applicant was adamant on his submission that the records had not been altered!
Curiously, the said page 128 is the one in issue and the strange page inserted in place of the original page 128, conforms with the allegation of the Applicant that some ruling allegedly delivered by the learned trial Judge was missing. By this application, the learned Counsel urges the Court to adopt the alleged notes of the Applicant’s Counsel of the Ruling of the trial Court which developed legs and walked away from the records. The case of Ogedengbe v Osho (2001) 12 SC pt 2 pg 1 @19 among other cases was cited to buttress this odd application. It is the opinion of the learned Counsel for the Applicant that there is no valid opposition to the application because no Counter-affidavits were filed by the Respondents in opposition.
Contrary to this wishful declaration however, objections were raised on points of law on the alleged page 128 which the Applicant created in place of the original page 128.
It is the submission of R. Adewobi of learned Counsel for the 1st Respondent that the Applicant has failed to comply with the provision of Order 8 Rules 1, 2 and 3 of the 2011 Rules of the Court. Counsel also drew attention to the fact that the said page 128 does not even reflect the name of the Counsel who allegedly took the notes now sought to be incorporated as part of the records which the Appellant has in fact failed to compile.
Y. O. Anikulapo of learned Counsel for 2nd and 3rd Respondent also raised points of law, drawing attention to page 148-150 at which the learned trial Judge alluded to several applications filed by the Appellant but which he failed to move. These maintains the learned Counsel, are the applications which the Applicant now seeks to smuggle into the records for the appeal.
The learned Counsel for the Applicant urged us to discountenance Respondents’ respective objections which learned Counsel dismissed as raising issues of facts not embodied in counter-affidavits.
I had earlier mentioned the issue of the unnumbered page inserted between pages 127 and 129 and which Mr. Adewobi of learned Counsel for the 1st Respondent described as having been “pasted to replace the page that was detached.” Mr. N. Akintude of learned Counsel for the 2nd and 3rd Respondent associated with the submission of Mr. Adewobi about the unusual state of the said page which Counsel describes as being the main premise of their application. I agree.
Upon a calm perusal of the records and a consideration of the application placed before the Court, one finds it difficult to refrain from condemning this clear attempt to doctor a record and create an application upon the said doctored page. Could this be an attempt to blackmail a diligent Judicial Officer who had in fact alluded to the lackadaisical attitude of the learned Counsel in the prosecution of the suit?
Ordinarily, it is a herculean task to import into the records of a Court, alien materials under the guise of a missing part of the record, particularly when such is not brought in by way of a non-controversial supplementary record. The reason for the reluctance of the Court and to be wary of such importation is not farfetched. The practice, if encouraged and condoned will open up the judicial system to serious ridicule. The instant application is a typical example, especially in the Ibadan Division, where, due to insufficient accommodation, a large number of the records are in fact exposed and opened to all manner of adulteration. I must however hasten to add that whatever the situation of the division, a learned Counsel has a duty to protect or at least show concern about an attempt to interfere with the records of the Court.
An application to add to the records of a Court is not one that is granted for the asking. In the case of G.B.A Akinyede & Ors v. Y. M Opere & Ors. (1967) 1 ALL N.L.R P. 302 at 303 the Supreme Court resisted such an attempt. The applicant sought to vary the records of the Court by a motion for leave to call additional evidence to correct the trial Judge’s record, complaining that two pages in his notes did not correctly record the evidence given by one of their witnesses,…
The apex court in refusing the application held that:-
Although the record, at most a summary in narrative form of what the judge understood the witness to say, may be to some extent inaccurate or incomplete, there was insufficient evidence before the court to prove the applicants’ version of what the witness said, and the court could not justifiably expunge the evidence already taken by the judge and hear the witness afresh.”
We are bound by the wisdom of the ultimate Court and must resist, resolutely, this clear attempt at blackmailing a Judicial officer as a palpable act of mischief.
The situation in this appeal is in fact not even as innocuous as that before the Supreme Court in Akinyede’s case. I had earlier stated in the course of this Ruling that the learned Counsel to Applicant turned blind eyes to the glaring fact staring him in the face that the records of this court have been compromised. That the said alteration directly affected the page put in issue by the Applicant is curious and indeed condemnable. The learned Counsel for the Applicant could not feign ignorance. He blatantly argued that there was nothing wrong with the records! In this application, the Applicant and or his agents, knowing fully well that they have no case, took steps to and in fact succeeded in mutilating the records of this Court!
Could it be a coincidence that the page sought to be enhanced with extraneous matters is in fact the page that happens to have been severed out of the record? I see no coincidence but a clear criminal act of forgery!
This practice is totally out of tone with our honourable profession. With great nostalgia and trepidation I shall refer here extensively to the grace, glamour and dignity ascribed to our profession in the good old days. It was in the case of RONDEL V. W. (1966) All E. L. R pg. 674 at g-h
COURT OF APPEAL, CIVIL DIVISION (Lord Denning, M. R., Danckwerts and Salmon, L.JJ.), June 13, 14, 15, 16, October 20, 1966.)
“As an advocate he is a minister of justice equally with the judge.
He has a monopoly of audience in the higher courts. No-one save he can address the judge, unless it be a litigant in person. This carries with it a corresponding responsibility, A barrister cannot pick or choose his clients. He is bound to accept a brief for any man who comes before the courts. No matter how great a rascal the man may be. No matter how given to complaining. No matter how undeserving or unpopular his cause. The barrister must defend him to the end. Provided only that he is paid a proper fee, or in the case of a dock brief, a nominal fee. He must accept the brief and do all he honourably can on behalf of his client.
I say “all he honourably can”‘ because his duty is not only to his client. He has a duty to the court which is paramount. It is a mistake to suppose that he is the mouthpiece of his client to say what he wants: or his tool to do what he directs. He is none of these things.
He owes allegiance to a higher cause. It is the cause of truth and justice. He must not consciously mis-state the facts. He must not knowingly conceal the truth. He must not unjustly make a charge of fraud, that is, without evidence to support it. He must produce all the relevant authorities, even those that are against him. He must see that his client discloses, if ordered, the relevant documents, even those that are fatal to his case. He must disregard the most specific instructions of his client, if they conflict with his duty to the court. The code which requires a barrister to do all this is not a code of law. It is a code of honour. If he breaks it, he is offending against the rules of the profession and is subject to its discipline; but he cannot be sued in a court of law. (Emphasis mine).
The dictum of Salmon L. J is equally emphatic on the duty of the learned Counsel to the court: –
“This court in which we sit is a temple of justice; and the advocates at the Bar as well as the judge upon the Bench are equally ministers in that temple. The object of all equally should be the attainment of justice; now justice is only to be reached through the ascertainment of the truth… but we are all together concerned in this search for the truth (The advocate) gives to his client the benefit of his learning, his talents and his judgment; but… he never forgets what he owes to himself and to others. He will not knowingly misstate the law. He will ever bear in mind that if he be retained and remunerated for his services, yet he has a prior and perpetual retainer on behalf of truth and justice.”
Per Salmon L. J at pg.673.
I cannot help wondering if the learned Counsel to the applicant is not the author of the fake page 128 of the record!
This application is hereby dismissed as not only lacking merit but also mischievous. A cost accessed at N10, 000.00 is awarded to the Respondents each and against the Appellant.
CHIDI NWAOMA UWA, J.C.A.: I read in advance the Ruling just delivered by my learned brother M.B. DONGBAN MENSEM, JCA.
I agree entirely with his lordship’s reasoning and conclusion arrived at in holding that the application lacks merit. I also dismiss same for lacking in merit and abide by the order made as to costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I entirely agree with the comprehensive Ruling read by my learned brother, Dongban-Mensem, J.C.A., (honourable presiding Justice of the Division). For the sake of emphasis, it is necessary for me to add these few comments to the incisive Ruling.
The court below noted in its judgment on pages 149 – 150 of the record of appeal (the record) that –
“The applicant was not present on 29/10/2004 to move its motion. Its counsel was also not present.
The motion was struck out for lack of diligent prosecution.
Barely 30 minutes after the motion was struck out, Mr. Omole brought another motion dated 4/11/2004. Since it was clear that Mr. Omole was in the premises its motion was fixed for hearing till 4/11/2004. ..
I can see that all the applications for adjournments and filing of applications which were never moved were designed to cause a delay of trial of the case to the prejudice of the plaintiff.
Counsel as an officer of Court owes a duty to assist it to arrive at a quicker dispensation of justice. His duty does not consist of slowing down the wheel of progress. These applications and motion filed without attempt to move them are meant to delay and not for an unimpeded progress of justice.”
The solemn words of the learned trial Judge (supra) were not impeached by the unconvincing affidavit evidence of the applicant. I accept the said solemn words as representing the true position of the case -see. Nwizuk v. Eneyok (1953) 14 W.A.C.A. 354.
It is for the reason (supra) and the elaborate reasons given in the Ruling of my learned brother, Dongban-Mensem, J.C.A., that I too find no substance in the application and hereby dismiss it and abide by the consequential order on costs contained in the said Ruling.
Appearances
O. O. Omole Esq. with him Onome Agboke Esq.For Appellant
AND
Rasheed Adewobi Esq. with him Oyelakin Oyedekun Esq. for the 1st Respondent
Y. O. Anikulapo with him Niran Akintunde for the 2nd and 3rd Respondents.For Respondent
