CHIEF THOMAS EKPEMUPOLO & ORS v. GODWIN EDREMODA & ORS
(2013)LCN/6484(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 5th day of November, 2013
CA/B/230/2010
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
Between
1. CHIEF THOMAS EKPEMUPOLO
2. MR. THOMAS GBAMINIDO
3. MR. BENSON LAWEI
4. CHIEF GOVERNOR EKPEMUPOLO
5. MR. PETER LAWEI
(For themselves and on behalf of Kere family of Egwa, Gbaramatu Clan, Warri) Appellant(s)
AND
1. GODWIN EDREMODA
2. ORITSEJE EDEKI
3. THOMAS E. UGBAMETA
4. EMMANUEL A. IWETAN
5. OMASAN D. EDUKUGHO
(For themselves and on behalf of Omadino Community, Warri)
6. SHELL B.P. PETROLEUM DEVELOPMENT COMPANY LIMITED Respondent(s)
RATIO
WHETHER OR NOT FAILURE OF A TRIAL COURT OR COURT OF APPEAL TO DEAL WITH A POINT MATERIAL TO A PARTY’S CASE MAY RESULT IN AN ORDER FOR A RETRIAL OR A HEARING DE NOVO
At Pg. 434 of the NSCC of Onifade v. Olayiwola, Nnaemeka-Agu JSC expounded thus:
“It has been suggested that the justice of the situation demands that I should remit the appeal to the Court of Appeal for a hearing de novo so that it could consider the merit or otherwise of those grounds. No doubt, in a proper case, failure of the High Court or the Court of Appeal to deal with a point material to a party’s case may result in an order for a retrial or a hearing de novo. But in deciding whether or not to so order, we ought to bear in mind the fact that we operate an adversary system of administration of justice. Under the system, a party succeeds or fails from the strength or otherwise, in terms of evidence and procedure, of the case he places before the court. On appeal his success depends on the content and quality of his grounds of appeal and his argument thereon. If he, on appeal, gets up a substantial issue or issues and argues them but the intermediate Court of Appeal fails to consider any of them, it is a ground for allowing the appeal and ordering a rehearing, unless, if course, the issue or ground is such that this court can properly resolve it upon a view of the printed evidence. This is a corollary of the rule that a party has a constitutional right to have every material aspect of the case which he has brought to court in pursuit or in opposition, considered by the court. But I am not aware that this rule can legitimately be extended to a situation such as this where the fault is that the appellant did not do what he was expected to do. He failed to raise any issues on the said grounds. He also failed to show both in his brief and in oral argument in this court that a consideration of those grounds would have affected the merits of the appeal. For this court to remit the appeal for a rehearing by the Court of Appeal in such a case will be tantamount to giving him a second chance simply to improve his case. A rehearing is properly ordered when such errors as a mistrial, a failure to resolve a material issue properly raised by the parties, a substantial misdirection by the court, or some other substantial error by the court itself, have occurred. It is never ordered in a case like this to enable an appellant to improve his case. PER OGUNWUMIJU, J.C.A.
THE DIFFERENCE BETWEEN A JUDGEMENT DECLARED A NULLITY AND A JUDGEMENT DECLARED TO BE WRONG
We must also remember that there is a vast difference between a judgment declared a nullity and a judgment declared to be wrong. In Awoyegbe v. Ogbeide (1988) 1 NWLR Pt. 73 at Pg. 695, the Supreme Court per Oputa JSC held thus:
“A clear distinction has to be drawn between a judgment emanating from proceedings which were null and void ab initio and a judgment which was merely set aside because of some errors in law or procedure committed by the trial court. In the former case, a new trial or venire de novo is the only thing that may be ordered, in appropriate circumstances, as the appellate court cannot possibly base its own consequential order on void proceedings, for ex nihilo nihil fit. But if the judgment appealed against was merely erroneous, (an appeal being a re-hearing), an appellate court can in addition to correcting the errors made by the trial court order a retrial or make such order or orders as the trial court would have made.” PER OGUNWUMIJU, J.C.A.
HELEN MORONKEJI OGUNWUMIJU, J.C.A (Delivering the Lead Ruling): The Applicants brought an application by motion on notice dated 11/10/12, filed on 16/10/2012 pursuant to Orders 6 Rules 15, 7 Rules 1 and 2 and 17 Rule 11 of the Court of Appeal Rules 2007. The motion is supported by a 14 Paragraph affidavit to which several exhibits were attached; thereafter the applicants filed a 5 paragraph further affidavit.
By the said motion filed on the 16/10/2012, the applicants asked this court to grant six prayers of which the respondents are not opposed to prayer one, five and six. The opposed prayers are herein after specifically set out as follows:
2. Leave to the appellants/applicants to further amend their amended notice of appeal filed on the 10th July, 1990 by substituting same with the further amended notice of appeal attached herein to the affidavit in support of this motion and marked exhibit “BB”.
3. Leave to the appellants/applicants to amend their brief of argument on the 10th July, 1990 by substituting same with the amended appellants’ brief of argument attached herein to the affidavit in support of this motion and marked exhibit “CC”.
4. Deeming the further amended notice of appeal, and the amended appellants brief of argument as properly filed and served, each having been separately filed and served, and the requisite fees having been paid.
The grounds for the application are set out below:
(i) There is need to bring before this court the judgment of the Supreme Court ordering rehearing of this appeal as well as the processes and procedure leading to the notice and grounds of appeal herein sought to be amended.
(ii) The substantive appeal was filed on 22nd December, 1980 by Messrs O.V. Siakpere and Dr. J.O. Akpojaro (both since deceased) who unsuccessfully argued the appeal, and further appeal to the Supreme Court in SC.35/2000.
(iii) Mr. S. Larry (now SAN) took up this matter on 6th June, 2006 and successfully argued the appeal at the Supreme Court which ordered rehearing by this court.
(iv) The appellants are desirous of further amending the amended notice and grounds of appeal as well as the appellants’ brief of argument before this court in order to bring before the court the real issues for determination.
(v) The proposed amendments are shown and the further amended notice of appeal and the amended brief of argument are ready, attached and also filed separately and so paid for.
(vi) There is need for accelerated hearing of this appeal as all briefs are in, and the area has known no peace since 1970 when the matter began.
The relevant portions of the supporting affidavit are paragraphs 6, 7, 8, 9, 10 and 12. They are set out below:
6. That on 27th March, 2009, the Supreme Court delivered judgment ordering a re-hearing of this appeal by the Court of Appeal, Benin Division.
7. That there is the need to properly bring before the court, the judgment of the Supreme Court ordering rehearing of this appeal, as well as the processes and procedure leading to the extant notice and grounds of appeal sought to be amended.
(The said supplementary record is hereby attached and marked exhibit “AA”.
8. That this case commenced since 1970, and since then the area had known no peace.
9. That it is in the interest of justice for the appeal to be reheard speedily.
10. That Mr. S. Larry has again studied the record and informed me in chambers on 24th April, 2009 at about 3.30 p.m. and I verily believe the following to be true:
(a) that in his humble opinion, there is need to further amend the amended notice of appeal by dropping/deleting the 1st and 2nd additional grounds of appeal therein and to substitute same with three new grounds.
(b) that he cannot in fairness proceed with the appeal without further amending the appellants/applicants’ Amended Notice and Grounds of Appeal.
12. That the amendments sought are in good faith to bring before the court the real issues arising in the appeal.
On 13/6/2013 the applicants filed a further affidavit of 5 paragraphs wherein some portions of the Supreme Court judgment were highlighted in aid of fact asserted that the order of rehearing made by the Supreme Court was unconditional. At the hearing of the motion, Mr. S. Larry, SAN insisted that no specific orders were made by the Supreme Court or directives given which limited the scope of the re-hearing order made by the Supreme Court. He referred to Ogunsola v. NICON (2010) 13 NWLR Pt. 1211 Pg. 225 at 240-241. The learned counsel for the applicants submitted that there is a need to further amend the amended Notice of appeal by dropping the 1st and 2nd additional grounds of appeal therein and to substitute same with three new grounds, and cannot in fairness proceed with the appeal without the amendment. He buttressed his argument by stating that the Supreme Court allowed the appeal on two grounds to wit –
I. Wrongful dismissal of the appeal by the Court of Appeal on account of non-compliance with the rules of court as to brief writing or inelegant briefs.
II. The non-evaluation of exhibit “A” by the Court of Appeal.
The counsel for the applicants submitted that the re-hearing order of the Supreme Court is open and unconditional.
He urged the court to hold that the amendments sought were not overreaching as the applicants intend only to bring clearly the real issues for determination and that the brief filed previously were bad, inelegant and in violation of the modern rules of brief writing. He further argued that Ladejo Onifade v. Alhaji Alimi Olayiwola & Ors. (1990) 11 SCNJ 10 at 25 cited by the respondent was misleading. He cited In Re Samuel v. Gbadeco (1978) All NLR 42 SC and Ogunsola v. NICON (2010) 13 NWLR Pt. 1211 Pg. 225 at Pg. 237 and Pg. 239. He urged the court to grant the application.
The motion was vehemently opposed by the Respondents with an 8 paragraph counter-affidavit filed on 8/5/2013 and a 9 paragraph further and better counter-affidavit filed on 16/5/2013. The crux of the Respondents’ argument as stated in paragraph 3 of the counter affidavit is that this court is only required to re-hear the appeal based on the production of Exhibit A by the Appellants and that the order of the Supreme Court to rehear the appeal is not an opportunity for the Appellants/Applicants to constitute a different appeal by filing amendments to the original notice of appeal. Mr. Awhama Esq. argued that the matter was submitted for a rehearing and not a retrial. It is the contention of the Respondent that the amendments sought to the notice of appeal and the appellants brief will overreach the Respondents and were made in bad faith.
Counsel argued that the Appellants/Applicants are trying to improve their case contrary to the order of the Supreme Court. He cited copiously Ogunsola v. NICON supra.
He submitted that the Supreme Court allowed the appeal only on the ground that “Exhibit A” the survey plan relied upon by the learned trial judge was not part of the records transmitted to this court. He further cited Mobil Producting (Nig) Unlimited vs. Monokpo (2003) 18 NWLR Pt. 852 Pg. 346; Edjekpo v. Osia (2007) All FWLR Pt. 361 Pg. 1617 on which the Supreme Court relied. He also cited Ladejo Onifade v. Alhaji Alimi Olayiwola & Ors. (1990) 11 SCNJ 10 at 25.
He urged this court to dismiss this application as it will over reach the applicants since the Supreme Court order to re-hear was to consider all the issues raised in the appeal and no more as such, it cannot be a license to commence a new appeal by filing fresh grounds of appeal or new issues. He argued that the appeal can be determined without further amending the Appellants/Applicants Notice and Ground of Appeal, as the refusal will comply with the order of the Supreme Court.
I have carefully considered the processes filed to support and to oppose this application. The judgment of the Supreme Court in SC/35/2000 delivered on 27th day of March, 2009 where the lead judgment was prepared by F.F. Tabai, JSC.
It was exhibited by the Applicants as Exhibit “AA”. The said lead judgment of Tabai, JSC was also exhibited by the Respondents in the further and better counter affidavit as Exhibit 1. Exhibit “AA” has been reported as Ekpemupolo & Ors v. Edremoda & Ors. (2009) 8 NWLR Pt. 1142 Pg. 166. Let us look at what happened at the Supreme Court. It is obvious to me that the Supreme Court allowed the appeal and sent back the case for re-trial for two reasons. The Supreme Court disagreed with this court for dismissing the appeal on technical grounds to wit for breach of the rules of court and principles governing the writing of briefs. At Pg. 185 of the NWLR paragraph G-H, Tabai JSC held that the dismissal of the appeal by this court on the ground that the appellant violated the principles governing the writing of brief is “tantamount to the determination of the appeal without giving the appellant a fair hearing. Therefore, if this were the only ground for the dismissal of the appeal at the court below this appeal would have been allowed on that ground alone”.
(underlining mine).
After the Supreme Court considered the appeal on the merit, based on the assertion of this court that it had considered the appeal also on the merit, the lead judgment concluded at Pg. 191 paragraph H of the NWLR as follows:
“The 2nd issue having been resolved in favour of the appellants, this appeal succeeds on this ground alone. The appeal is accordingly allowed. The judgment of the court below be as is hereby set aside its being a nullity. The appeal be and is hereby remitted back to the Benin Division of the Court of Appeal for rehearing by another panel of that court.” (Underlining mine)
It is apt to note that all members of the Supreme Court panel coram, Dahiru Musdapher JSC (as he then was); Oguntade JSC, Ogbuagu JSC; Tabai JSC and Muntaka-Coomassie JSC were ad idem on the orders made. The lead judgment having declared the judgment of the Court of Appeal a nullity, the order of re-trial de novo was a consequential order made specifically by all the other justices on the panel.
I have read Onifade v. Alhaji Olayiwola & Ors. (1990) 3 NSCC Pg. 421 at Pg. 434. In that case, the Supreme Court dismissed the appeal and refused to order a re-hearing of the appeal because the appellant failed at the Court of Appeal to raise issues from the grounds of appeal. The Supreme Court held that the appellant could not be allowed at it were a second bite at the cherry. I found the lead judgment of Nnaemeka-Agu JSC particularly illuminating as it better explains the distinction between the two scenarios presented by the parties in this motion under consideration. In this motion, while the applicant believed that there was an unconditional order of rehearing, the Respondent argued that the order of rehearing was limited to the case hitherto made out by the parties at the Court of Appeal.
At Pg. 434 of the NSCC of Onifade v. Olayiwola, Nnaemeka-Agu JSC expounded thus:
“It has been suggested that the justice of the situation demands that I should remit the appeal to the Court of Appeal for a hearing de novo so that it could consider the merit or otherwise of those grounds. No doubt, in a proper case, failure of the High Court or the Court of Appeal to deal with a point material to a party’s case may result in an order for a retrial or a hearing de novo. But in deciding whether or not to so order, we ought to bear in mind the fact that we operate an adversary system of administration of justice. Under the system, a party succeeds or fails from the strength or otherwise, in terms of evidence and procedure, of the case he places before the court. On appeal his success depends on the content and quality of his grounds of appeal and his argument thereon. If he, on appeal, gets up a substantial issue or issues and argues them but the intermediate Court of Appeal fails to consider any of them, it is a ground for allowing the appeal and ordering a rehearing, unless, if course, the issue or ground is such that this court can properly resolve it upon a view of the printed evidence. This is a corollary of the rule that a party has a constitutional right to have every material aspect of the case which he has brought to court in pursuit or in opposition, considered by the court. But I am not aware that this rule can legitimately be extended to a situation such as this where the fault is that the appellant did not do what he was expected to do. He failed to raise any issues on the said grounds. He also failed to show both in his brief and in oral argument in this court that a consideration of those grounds would have affected the merits of the appeal. For this court to remit the appeal for a rehearing by the Court of Appeal in such a case will be tantamount to giving him a second chance simply to improve his case. A rehearing is properly ordered when such errors as a mistrial, a failure to resolve a material issue properly raised by the parties, a substantial misdirection by the court, or some other substantial error by the court itself, have occurred. It is never ordered in a case like this to enable an appellant to improve his case.
It is apparent from the above that where an order of rehearing de novo is made as was clearly made by the Supreme Court in SC 35/2000,it is expected that the parties are at large to do whatever they need to do to re-present their case before this court. This court was found not only to have erred on a technical point but was found to have erred on its consideration of the appeal on the merit.
My view is that the applicants are at large to amend their pleadings and that this court can exercise its powers under S.15 of the Court of Appeal Act is also buttressed by the authority of the Supreme Court in Ogunsola v. NICON supra, where Ogbuagu JSC who delivered the lead judgment held unequivocally at Pg. 237 of the NWLR that –
“surely, if there is no specific order or directive by or from this court, the Court of Appeal, is free and on a solid ground or terrain, to invoke its powers under S.16 of the Act and Order 3 Rule 16 of the Rules. I so hold.”
Let us remember that the facts which led to the appeal in Ogunsola v. NICON are different from this case. In that case the Supreme Court had made specific consequential orders on how the rehearing was to be conducted thus delimiting the exercise of the powers of this court under what is now S.15 of the Court of Appeal Act. The Supreme Court in SC 35/2000 did not shackle the hands of this court to rehear the appeal having declared the judgment of this court a nullity.
We must also remember that there is a vast difference between a judgment declared a nullity and a judgment declared to be wrong. In Awoyegbe v. Ogbeide (1988) 1 NWLR Pt. 73 at Pg. 695, the Supreme Court per Oputa JSC held thus:
“A clear distinction has to be drawn between a judgment emanating from proceedings which were null and void ab initio and a judgment which was merely set aside because of some errors in law or procedure committed by the trial court. In the former case, a new trial or venire de novo is the only thing that may be ordered, in appropriate circumstances, as the appellate court cannot possibly base its own consequential order on void proceedings, for ex nihilo nihil fit. But if the judgment appealed against was merely erroneous, (an appeal being a re-hearing), an appellate court can in addition to correcting the errors made by the trial court order a retrial or make such order or orders as the trial court would have made.”
The Supreme Court in Appeal No. SC 35/2000 declared the judgment of the Court of Appeal a nullity by virtue of the failure of this court to consider an important factor of the case presented by one of the parties by way of Exhibit “A”. Then the Supreme Court could not have made any consequential orders limiting the rehearing of void proceedings. I cannot then agree with Mr. Awhana that the Supreme Court put any conditions to inhibit the inherent and unfettered discretion of this court pursuant to S.15 of the Court of Appeal Act to grant leave to amend the notice of appeal and amend the brief of argument as sought by the applicants’ prayers 2, 3 and 4 on the motion paper.
In the circumstances, this motion is meritorious and all the prayers are granted as prayed. Additional grounds of appeal in terms of Exhibit “AA”, amended notice of appeal in terms of Exhibit “BB”, Amended Appellant’s brief in terms of Exhibit “CC”, already filed in this court separately on 16/10/2012 are deemed properly filed today.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A: I have had the privilege of reading, before now, the Ruling just delivered by my learned brother the Hon. Justice H.M. Ogunwumiju JCA. I concur with the reasoning and conclusion reached therein, to the effect that the instant motion on notice, filed by the Appellants/Applicants on 16/10/12, is meritorious.
Hence, having adopted the reasoning and conclusion in question as mine, I hereby grant all the prayers sought in the motion.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A: I have had the privilege of reading in draft the lead Ruling prepared by my learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA. His lordship has painstakingly and incisively too, dealt with the pertinent issues that call for determination in the application before the Court and I am in complete agreement with the exposition of the law, reasoning and conclusions in the lead Ruling.
It is in my considered view clear as crystal that the Supreme Court allowed the appeal against the judgment of this court in the matter involving the parties herein, not on the ground of appeal that questioned the correctness of the decision of this Court but solely upon the success of the ground of appeal that necessitated or resulted or compelled that Court to set aside the judgment of this Court in the matter, for being a nullity. The remittance of the matter back to this Court for it to be heard by another panel of the Court in my considered view simply restored the matter to the cause list of the Court; thereby making it one of the appeals pending and yet to be heard or entertained, in any manner. This is against the backdrop of the consequences of an order declaring a judgment or proceedings a nullity as articulated in the lead ruling. It is therefore my considered view that all the avenues or means provided by the extant Court of Appeal Rules to enable a party in an appeal to properly ventilate his grouse is available to the Appellants/Applicants in the application before the court inasmuch as the instant appeal is just like any other appeal pending before this court and yet to be heard; the initial hearing having been declared as “no hearing” as it were by the Supreme Court. The Respondents have undoubtedly placed nothing before the court, to justify the denial to the Appellants of the indulgence of further amending their Notice of Appeal the Appellants haven seen the need for this.
Accordingly, I too, find the motion before the court to be meritorious and grant the orders sought therein in the same manner as contained in the lead ruling.
Appearances
S. Larry (SAN) with him E. OkoliFor Appellant
AND
Mr. T.S. Awhana for the 1st – 5th Respondents.For Respondent
