MAJOR EKUNDAYO AWOYOMI v. CHIEF OF ARMY STAFF & ORS
(2013)LCN/6501(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of November, 2013
CA/L/810/10
RATIO
POSITION OF THE LAW WHEN AN AFFIDAVIT IS SEEN NOT TO HAVE BEEN CHALLENGED BY THE FILING OF A COUNTER AFFIDAVIT
Further when an affidavit is seen not to have been challenged by the filing of a counter affidavit, it entitles the trial Judge to act on the averments in the affidavit. Long John v. Blakk (1998) 6 NWLR (Pt.555) 524; A.G. Plateau v. A.G. Nasarawa State (2005) 9 NWLR (Pt.930) 421. PER CHINWE EUGENIA IYIZOBA, J.C.A.
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
Between
MAJOR EKUNDAYO AWOYOMI Appellant(s)
AND
1. CHIEF OF ARMY STAFF
2. MINISTER OF DEFENCE
3. THE NIGERIAN ARMY
4. ZENITH BANK PLC Respondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering The Leading Judgment): This appeal is against the Ruling of the Federal High Court Lagos Division presided over by Ajakaiye J in suit no. FHC/CS/L/291/01 delivered on the 3rd day of June,2010. The learned trial Judge had on the 13th day of December 2006 given judgment in favour of the appellant declaring his retirement from service in the Nigerian Army null and void. Although during the hearing, the 1st-3rd Respondents were represented by various Government counsel who filed a statement of defence which was subsequently amended, they failed to appear and lead evidence in proof of their defence. The learned trial Judge in his judgment made the following orders inter alia:
1. “The Plaintiff is to be paid his salaries, allowances and all other benefits from the date of his purported retirement i.e. 1990 to date. Furthermore, the period between 1990 and the date of this judgment is to be taken into consideration as having formed part of his service years.
2. I award N50,000.00 damages to the plaintiff
3. I also award cost of N5000.00 to the plaintiff.”
All the efforts made by the Appellant including committal proceedings to get the 1st -3rd Respondents to comply with the Court Orders failed. During the committal proceedings, the 1st-3rd Respondent now briefed a private law firm of A. E. Airende & Co a retainer firm of the 3rd Defendant to take over the case. Eventually the Appellant brought a garnishee application to attach the 1st-3rd Respondent’s account with the 4th Respondent. The amount the Appellant claimed was due to him for which the garnishee application was made amounted to N70,152,003.25 (Seventy million,one-hundred and fifty-two thousand three naira, twenty-five kobo.). The Appellant in his affidavit deposed that he sought the assistance of the Federal High Court Accounts Department to compute the judgment debt due to him since the Respondents refused to do the computation. An order nisi for this amount was made by the lower court. Before the return date for the order to be made absolute, the Respondents filed a preliminary objection seeking to set aside the Garnishee order nisi for lack of jurisdiction. The Appellant filed a preliminary objection to the appearance of the law firm of A. E. Airende & Co and later a counter affidavit to the Respondents’ preliminary objection. The Respondents filed a counter affidavit to the Appellants preliminary objection and a reply to their counter affidavit. Both applications were heard together and ruling delivered on 3/6/2010 by Ajakaiye J. holding that the appellant was entitled to the sum of N7,174,951.20 (seven million, one hundred and seventy-four thousand, nine hundred and fifty-one naira twenty kobo) as computed by the Deputy Director Army Personnel Pay Office instead of the N70.152 million as computed by the Federal High Court Accounts Department. The learned trial Judge was of the view that it is the Respondents- the Military that are in the best position to work out the emoluments and entitlement of the Appellant in accordance with their own scheme which may be unknown to the Accounts Department of the Federal High Court. It is against this ruling that the Appellant has now appealed to this Court.
The Notice of Appeal at page 934 Volume 3 of the Record contains two grounds of appeal out of which the Appellant formulated two issues thus:
1. Whether the law firm of A.E. Airende & Co can lawfully appeal for the Respondents without the fiat of the Attorney General of the Federation and properly bring a preliminary objection on behalf of the Respondents given the role of a judgment debtor in a garnishee proceeding?
2. Whether the failure of the Court to consider the counter affidavit of the Appellant does not vitiate the ruling?
The Respondents in their brief expressed reservations on the issues formulated by the Appellants on the ground that the arguments canvassed in the Appellant’s brief transcended the issues as formulated. In order that their arguments will flow in line with those of the Appellant, the Respondents opted to adopt the issues as formulated by the Appellants. I shall adopt the issues in the determination of the appeal.
ISSUE 1:
Whether the law firm of A.E. Airende & Co can lawfully appear for the Respondents without the fiat of the Attorney General of the Federation and properly bring a preliminary objection on behalf of the Respondents given the role of a judgment debtor in a garnishee proceeding?
The contention of the Appellant on this issue is that whether civil or criminal, a private legal practitioner cannot represent the Government or any of its agencies without the authority of the Attorney-General by way of a fiat. The law firm of A.E. Airenda & Co having failed to produce a fiat from the Attorney-General of the Federation could not lawfully represent the Respondents. Appellant’s counsel relied on Section 150(1) of the 1999 Constitution, Section 56 of the Federal High Court Act and the following authorities: Comptroller Nigerian prison Service & ors v. Femi Adekanya & 17 Ors (1999) 5 NWLR (pt 602) L67; Osahon v. F.R.N. (2003) 16 NWLR (Pt. B4s) 89 @ 120-121 H-B; Emeakayi v. C.O.P. (2004) 4NWLR (Pt. 862) 179; Provost Lagos State College of Education v. Edun (2004) 6 NWLR (Pt. 870) 476 @ 495 E-A.The Respondents on the other hand contended that there is a distinction in these matters between criminal and civil cases. Learned Counsel for the Respondents argued that while a fiat is required in the prosecution of criminal cases by a private legal practitioner; it is not so in civil cases. Counsel attempted to draw a distinction between Section 56(1) and 56(2) of the Federal High Court Act, Laws of the Federation 2004.
It is necessary to set out the various provisions of the Constitution and other laws referred to by Counsel in their briefs.
Section 174 of the Constitution of the Federal Republic of Nigeria 1999 provides-
“174 (1) The Attorney General of the Federation shall have powers:
a. To institute and undertake criminal proceedings against any person before any court of law in Nigeria,other than a Court-Martial in respect of any offence created by or under any Act of the National Assembly.
b. To take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and
c. To discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.
(2) The powers conferred upon the Attorney General of the Federation under subsection (1) of this section may be exercised by him in person or through officers of his department
(3)….
Section 56 of the Federal High court Act LFN 2004 provides-
“56 (1) In the case of a prosecution by or on behalf of the Government of the Federation or by any public officer in his official capacity, the Government of the Federation or that officer may be represented by a law officer, state counsel, or by any Legal Practitioner duly authorized in that behalf by or on behalf of the Attorney General of the Federation.
56 (2) In any civil case or matter in which the Government of the Federation or any public officer in his official capacity is a party or in any civil cause or matter affecting the revenue of the Government of the Federation, that Government or that officer may be represented by a law officer, state counsel, or any legal practitioner or other person duly authorized in that behalf by or on behalf of the Attorney General of the Federation..
It is not in doubt that Section 174 of the Constitution of the Federal Republic of Nigeria 1999 is concerned with criminal cases only. Section 174 (2) provides that the power conferred under subsection 1 must be exercised by the Attorney General in person or through the officers of his department. Some authorities have construed this provision to mean that there can be no delegation to a private legal practitioner. See Comptroller Nigerian Prison Service & Ors v. Femi Adekanya & 17 Ors (1999) 5 NWLR (Pt.602) 167 @ 175 D; Osahon v. F.R.N. (2003) 16 NWLR (Pt.8450 89 @ 120-121 H -B. But there are Supreme Court authorities which hold the view that there is nothing in the Section preventing the Attorney General of the Federation in appropriate circumstances from authorizing a private legal practitioners to undertake the prosecution of criminal offences on his behalf. Indeed in The State v. Collins Aibangbe & Anor. (1988) 3 NWLR (Pt.84) 548 @ 578, Eso JSC referring to the cases of DPP v. Akozor (1962) 1 All NLR 235 and Nafiu Rabiu v. Kano State (1980) 8 – 11 SC 130 stated that the Supreme Court had ruled that institution and undertaking of criminal prosecution within the meaning of Section 191 of the 1979 Constitution (Section 174 of the 1999 Constitution) mean that the Attorney General and his staff can commence and make themselves responsible for a criminal prosecution and not that they cannot brief private practitioners to appear on behalf of the Attorney-General either alone or with a member of the Attorney-General’s staff. See also Tukur v. Government of Gongola State (1988) 1 NWLR (Pt.688) 39.
The normal practice is for the Attorney-General to issue a Fiat to the private legal practitioner as evidence of the authority to so represent him in the criminal prosecution. The question is whether the same is applicable in civil matters. With all due respect to learned counsel for the Appellant, it seems not to be the case. The relevant provision here is Section 56 (2) of the Federal High Court Act. It provides that the Government or the officer be represented by a law officer, state counsel, or any legal practitioner or other person duly authorized in that behalf by or on behalf of the Attorney General of the Federation.” In the case of Turkur v. Government of Gongola State (Supra), Oputa JSC discussing Section 105(2) of the High Court Law of Northern Nigeria which is identical with Section 56(2) of the Federal High Court Act observed:
“Even if one agrees for the sake of argument that Section 105(2) of Cap 49 of 1963 applies (which is not the case) one has to point out that that section did not stipulate that such authorization should be “in writing”. I will decline to read into any enactment words which are not to be found there and which will alter its operative effect – West Derby Union v. Metropolitan Life Assurance Society (1879) A.C. 647 per Lord Hershall at p.655. In his Brief, learned counsel for the Appellant tried to argue that since by Section 53 of the Interpretation Act “whenever a fiat or consent of the President or Governor or any public officer is necessary any document purporting to bear the fiat or consent.shall be received as prima facie evidence….” It follows that the authorization required by Section 105(2) of the High Court Law of Northern Nigeria should be in writing. I will regard this argument of the Appellant as an example of the old apparently ineradicable fallacy of importing into an enactment which is expressed in clear and unambiguous language something which is not contained in it by argument and analogy from other sections of other enactments. Surety “a fiat’ and “a consent” are not on the same plane as the expression “duly authorized’ used in Section 105(2).”
In the instant appeal, all learned counsel needed to do was to state that he was duly authorized by the Attorney-General or on his behalf to appear for the 1st-3rd Respondents. Oputa JSC in Tukur v. Government of Gongola State (Supra) @ 52 C went as far as holding thus:
“Also the Courts usually and normally take counsel’s word for it when counsel announces that he is appearing for a client. The Courts do not require counsel to tender written evidence to prove that he had been so briefed. It will be a sad day for the Legal Profession in Nigeria when counsel can no longer be believed that he is appearing for a client and it does not matter if that client is a State Government. This is as it should be. In Halsbury’s Laws of England, 4th Edition,Vol.3, para.1179 sub nomen Authority of Counsel appears the following relevant statement:-
“When counsel appears in court and states that he is instructed the Court will not inquire into his authority to appear” – Allen v. Francis 3 KB. 1065.
Learned Counsel did more. A letter from the 3rd Respondent -The Nigerian Army briefing Counsel to take up the case was put in the court’s record and is at pages 42-45 Vol. 1. It is also on record that the law firm of A. E. Airende & Co is a retainer of the Nigerian Army. The fact was not disputed by the Appellant. What is more? Oputa JSC in Tukur’s case agreed with the submission in the Respondent’s brief that the appellant had no locus to challenge the authority of the private legal practitioner to represent the State Government. Rather it is the State Government or the Attorney-General that is competent to complain that the private legal practitioner did not have the mandate of the Attorney-General to represent the State. After all, the Appellant’s case did not depend for its success on who represents his opponent but on the available evidence and the applicable law. These points are indeed valid and totally apposite in this appeal. It is pertinent to point out that only one out of all the cases cited by learned counsel for the Appellant is a civil case. All the others are criminal cases and so not relevant in the present appeal. In the civil case of Provost Lagos State College of Education v. Edun (supra) the main reason why representation by Mr. Babatunde Fashola was rejected by the supreme court is that he admitted that he had no fiat or authorization whether from the Attorney-General of Lagos State or from any other authorized public officer to appear for the appellants in the appeal. The relevant and vital point is authority to represent the appellants, not necessarily whether or not he had the fiat of the Attorney-General.
A legal practitioner cannot just jump into a case and announce appearance for a party without authorization from the party. It is true that the issue was raised suo motu by the Court. It came up because the Court had to verify what to put in its records as regards Counsel’s appearance for the Appellants. It must be noted that the information the Court demanded was his designation in the Ministry of Justice if he belonged to that Ministry or, in the alternative, whether he was a private legal practitioner retained to appear for the Appellants in the prosecution of the appeal. If Mr. Fashola had answered that he was retained by the Appellants to prosecute the appeal, in view of the Supreme Court authorities on the point that would have been the end of the matter. But with his answer that he had no authorization from any one, there was no way the Court could allow him to continue to represent a party when he was not retained to do so. The case is clearly not apposite to the present appeal. There is evidence in the court record that the law firm of A. E. Airende & Co was authorized by the Respondents to represent them. There is no evidence that they did not act on behalf of the AGF. What Section 56(2) requires is authorization by or on behalf of the AGF. It was out of place for the Appellant to contend that the law firm did not have the fiat of the Attorney-General when the case is a civil matter and when there has been no complaint from the Attorney- General that the Respondents did not act on his behalf when they briefed the law firm to represent them. The onus in the circumstances rests on the Appellant. It seems the only way the Appellant could have discharged the onus is to get the Attorney-General to deny that the Respondents acted on his behalf by authorizing the Law Firm to represent them in view of Oputa JSC’s view in Tukur v. Government of Gongola State (supra) that due authorization by or on behalf of the AGF under a provision similar to Section 56 (2) of the Federal High Court Act need not be in writing. It is enough if Counsel states in open Court that he is appearing for the relevant party. There is consequently no merit in this particular contention by the Appellant.
The appellant had further contended that the 1st and 3rd Respondents were nominal parties in the garnishee proceedings and as judgment debtors ought not to have been heard in the proceedings. By this the Appellant meant that after the order nisi was made by the lower court in respect of the sum of 70 million naira plus, the judgment debtor had no further role to play as all that was left was for the Court to make the order absolute and consequently a matter between the judgment creditor and the bank. As submitted by learned counsel for the Respondents, the contention of the Appellant is faulty. The judgment of the Court was not a final judgment for a liquidated sum of money known to both parties. The lower Court in its judgment made an order in favour of the Appellant in the following terms:
“The Plaintiff is to be paid his salaries, of allowances and all other benefits from the date his purported retirement i.e. 1990 to date. Furthermore, the period between 1990 and the date of this judgment is to be taken into consideration as having formed part of his service years.”
This order is clearly not one for a liquidated sum of money for which garnishee proceedings can be taken. Order 37 of the Federal High Court Civil Procedure Rules 2009 provides:
“1. (1) Where a person (in this order referred to as “the judgment creditor”) has obtained a judgment order for the payment by some other person (in this order referred to as “the judgment debtor’) of a sum of amount in value to at least N20,000 not being a judgment or order for the payment of money into Court, and any other person within the jurisdiction (in this order referred to as “the garnishee’) is indebted to the judgment debtor, the court matter, subject to the provisions of this order and of any enactment, order the garnishee to pay the judgment creditor the amount of any debt due or accruing due to the judgment debtor from the garnishee, or as much thereof as is sufficient to satisfy that judgment or order and the costs of the garnishee proceedings.”
A further step was needed to ascertain the actual amount due to the Appellant from the 1st-3rd Respondents. The appropriate authority equipped with the necessary information to calculate the appellant’s entitlement is the Army Records Department Lokoja. The Respondents claim that when the parties were negotiating out of court settlement, the Respondents wrote to the Appellant to proceed to Army Records Department, Lokoja to make the necessary documentation as a prelude to the calculation of his entitlement but he wrote back refusing the gesture. The Appellant on the other hand claimed that the Respondents refused to do the necessary calculation and so he went to the Federal High Court Accounts Department to do the calculation for him. It is the figure of 70.152 million naira as calculated by the Accounts Department of the Federal High Court that the Appellant used in obtaining the order nisi in the garnishee proceedings. With the deposition in the affidavit of the Appellant as to how he came by the figure of seventy million naira plus without any in put from the Respondents, the lower court ought not to have granted the order nisi based on that figure. The anomaly clearly escaped the attention of the learned trial Judge. After the order nisi was made and the order served on the judgment debtors they promptly challenged the figure by filing the preliminary objection. The law, I think is clearly on the Respondents’ side. Order 37 Rule 3(1)(b) of the Federal High Court Civil Procedure Rules require the order nisi obtained ex parte to be served on the Judgment debtor at least seven days before the day appointed for further consideration of the matter. This, in my view is to enable the judgment debtor under Order 26 Rules 11, 14 and 17 apply for the variation or discharge of the order. Order 26 Rule 11 provides:
“Where an order is made on a motion exparte, any, person affected by it may, within seven days after service of it, or within such further time as the Court shall allow, apply to the Court by motion to vary or discharge it; and the Court may, on notice to the party obtaining the order, either refuse to vary or discharge it, or may vary or discharge it with or without imposing terms as to costs or security, or otherwise, as it seems just.” (Underlining mine for emphasis.)
Consequently, the argument of the Appellant in paragraph 4.13 page 5 and paragraph 4.16 page 6 that the judgment debtor is a nominal party and has no role to play in a garnishee proceeding in this particular situation is misconceived. Common sense alone dictates that in a situation such as occurred in the instant appeal, there has to be an avenue for the judgment debtor to challenge the amount the Appellant computed on his own without any court order and without any in put from his employers who alone know the modalities for computation of entitlements of their employees.
The cases of Denton-West v. Muoma (2008) 6 NWLR (Pt.1083) 418 @ 442, P.P.M.C. v. Delphi Pet. Inc (2005) 8 NWLR (Pt.928) 458 @ 486 B – F and UBA Plc v. Ekanem (2009) 40 W.R.N. 150 referred to by learned counsel for the Appellant in support of his contention that the judgment debtor is only a nominal party in garnishee proceedings and not competent to react to the order nisi are not apposite. In those cases, the judgment debts were clear and ascertainable sums of money unlike in the present case where the judgment sum was not known. The Appellant ought to have gone back to the Court by motion on notice for an order as to how to ascertain the actual sum due to him in view of the refusal of the Respondents to compute the sum. He ought not to have on his own gone to the Federal High Court Finance Department to unilaterally come up with a figure. This is why the Respondents viewed it as a “fraud in the making.” In the case of Purification Tech, (Nig.) Ltd v. A.G Lagos State [2004] 9 NWLR (Pt 879) 665, the Court of Appeal held that the application of a judgment debtor to set aside the garnishee order nisi could be possible on the ground that there had been some procedural irregularity in the proceedings of such serious nature that the order ought to be treated as a nullity. The situation here was one of such instances. The learned trial Judge lacked the jurisdiction to entertain the application for garnishee order nisi when the judgment was not for a definite sum of money and when the amount claimed was arrived at unilaterally by the appellant without any order from the Court and without hearing from the Respondents. I hold that learned counsel for the Respondents did not need to show a fiat of the AGF before appearing for the Respondents in this case as this is not a criminal case. The Court in my view was right in entertaining the preliminary objection of the Respondents. Issue one is consequently resolved against the Appellant.
ISSUE TWO:
Whether the failure of the Court to consider the counter affidavit of the Appellant does not vitiate the ruling?
The grouse of the appellant on this issue is that the learned trial Judge in his ruling stated that the Appellant did not file a counter-affidavit and thereby did not consider the counter-affidavit duly filed by the Appellant to which the Respondent had filed a reply. It was argued that the Court consequently relied solely on the calculation of salaries and entitlements as put forward by the Respondents and did not consider the complaints of the Appellant on the method of calculation as set out in his counter-affidavit. He claimed he was thereby denied his constitutional right to fair hearing.
In reply, learned counsel for the Respondents admitted that the counter-affidavit was served on them and that they duly filed an appropriate reply to the counter-affidavit. Counsel argued that the fact that they were served did not imply that the counter-affidavit was in the court’s file at the time of the ruling and that even if the averments in the counter-affidavit had been taken into consideration, there was nothing therein that would have effected a change in the ruling of the trial Judge.
It is indeed surprising that in the Ruling of the trial Judge at page 921 of the Record, the learned Jurist observed:
“It is noteworthy that no counter affidavit was filed on behalf of or by the Judgment Creditor. Rather what is termed “preliminary objection” was filed on behalf of the judgment creditor asking the court to strike out the preliminary objection of the judgment debtors on the ground of incompetency……”
The above view of the trial Judge is contrary to what is contained in the Record of Proceedings of the relevant dates. The proceedings of 15/3/10 when the preliminary objection of the Respondent first came up for hearing is at page 870 of the Record. After the Respondents’ counsel informed the Court that they have a preliminary objection to the order nisi granted by the court in favour of the judgment debtor and that they have filed their written address in support of the objection; learned counsel for the Appellant applied for an adjournment to enable them file their counter affidavit and written address. The case was then adjourned to 30/3/10 for adoption of addresses. The counter affidavit with exhibits and written address are at pages 872-902 of the Record. The Respondents Reply to the counter affidavit and written address are at pages 903- 910 of the Record. When the preliminary objection again came up for hearing on 30/3/10, learned counsel for the Respondents after adopting their written address on the preliminary objection indicated that they filed a reply which they also adopted. Learned counsel for the Appellant then stated that they filed a counter affidavit and written address both dated 22/3/10. They adopted their address and the case was adjourned to 3/6/10 for ruling – page 912 of the Record, In view of the fact that the Appellant duly informed the court as shown in the proceedings of the relevant dates that he filed a counter affidavit which invariably is accompanied with a written address; and the fact that the Respondents’ reply referred copiously to the counter-affidavit filed by the Appellant, it is hard to understand why the learned trial judge came to the erroneous conclusion that the Appellant did not file a counter affidavit. I have carefully perused the ruling of the learned trial Judge at pages 919 – 929 of the Record; it is obvious that the learned trial Judge neither considered the counter affidavit of the Appellant nor his written address. This no doubt is indeed a grievous error on the part of the trial Judge and may indeed be seen as having deprived the appellant of his constitutional right to fair hearing.
Further when an affidavit is seen not to have been challenged by the filing of a counter affidavit, it entitles the trial Judge to act on the averments in the affidavit. Long John v. Blakk (1998) 6 NWLR (Pt.555) 524; A.G. Plateau v. A.G. Nasarawa State (2005) 9 NWLR (Pt.930) 421. This explains why the learned trial Judge accepted Exhibit c of the Respondents’ affidavit in support of the preliminary objection that the sum of N7,174,951.20 is the amount due for attachment without further enquiry. If the learned trial Judge had considered the counter affidavit of the Appellant, which contained documentary evidence challenging the figure, arrived at by the Respondents, the learned Jurist would have seen the need for further investigation of the claims of the Respondents instead of relying wholly and entirely on their calculations. In their brief, learned counsel for the Respondents argued as though the only issue is, as between the Federal High Court Accounts Department and the Army Personnel Pay Office who was the competent authority to calculate the entitlement of the Appellant. It is not in doubt and I agree totally as earlier stated that the lower court was right in its conclusion that Federal High Court Accounts Department is not competent and has no authority to calculate the entitlement of the Appellant. I believe the Accounts Department was fully aware of this, hence the appendage of the clause ..Without prejudice” in the document they prepared for the Appellant. The other relevant issue is the correctness of the calculations made by the Army Personnel pay Office. The Appellant in his counter affidavit vehemently challenged the figure with documentary evidence. This counter affidavit was not considered by the Court. The Court in deed thought no counter affidavit was filed. The Respondents are consequently wrong in their contention that even if the counter affidavit was considered, the ruling of the lower court would not have been affected. From the averments in the affidavits I do not share that view. Even if at the end of the day the Court came to the same conclusion, the Appellant would have been satisfied that his views were considered before the court arrived at its conclusion. On this point he was deprived fair hearing. Issue 2 is resolved in favour of the Appellant only to the extent that the counter affidavit of the Appellant ought to have been taken into consideration in determining the accuracy of the computation of the Army Personnel Pay Office as to the amount due to the Appellant.
The Appellant wants us to invoke Section 16 of the Court of Appeal Act and to grant the relief claimed in his notice of appeal. The Respondents on the other hand want us to invoke the Section, make an incursion into the Records to enable us reach the conclusion that the Ruling of the Court would not have been different even if the counter affidavit was considered.
I have considered carefully, the affidavit evidence of the parties at the lower court. I am of the view that this is not one of those instances when the Court can invoke its powers under Section 16 now Section 15 of the Court of Appeal Act 2011. In Ezeigwe v Nwawulu [2010] 4 NWLR (Pt.1183) 159 @ 203-204 F-A, the Supreme Court reiterated the conditions which must exist for Section 15 of the court of appeal Act to apply. They are:
a. That the High Court or trial court had the legal power to adjudicate the matter before the appellate court entertained it;
b. That the real issue raised by the claim of the appellant at the High court or trial court must be capable of being distilled from the grounds of appeal;
c. That all necessary materials must be available to the court for consideration;
d. That the need for expeditious disposal of the case to meet the ends of justice must be apparent on the face of the materials presented; and
e. That the injustice or hardship that will follow if the case is remitted to the court below must clearly manifest.
Conditions (a) and (b) are satisfied. The lower court had jurisdiction to entertain the matter. The real issue raised in the claim at the lower court which is the correct amount for the garnishee absolute was the basis of ground 2 in the Notice of Appeal. I am of the view that condition c is not satisfied. In paragraphs 5.06 – 5.07 at page 9 of his brief, the appellant argued:
“In view of the behaviour of the Respondents throughout the proceedings before the court (the judge had earlier found as a fact they were in disobedience of the judgment of the court. See page 664 of the Records), the judge should have been more cautious in relying totally on the calculation as put forward by the Respondents. Exhibit C should have been taken with a pinch of salt. The Court below regarded Exhibit C as an expert opinion and so the position of the law on expert opinion should have been applied by the court below. The maker of the said Exhibit C was neither cross examined nor the basis of the report attached to it, (the pay slips, terms and conditions of service and the consolidated salary structure. In SHELL PETROLEUM DEV. CO LTD V. OTOKO (1990) (PT.159) 693 AT 173.the Court held that an expert must state clearly the reasons for his opinion. See also the case of B.E.O. OGIALE V. SHELL PETROLEUM DEV. CO LTD (1997) 1 NWLR (PT.480) 148
In J.E. ELUKPO & SONS LTD V. F.H.A. (1991) 3 NWLR (PT.179) 322 AT 334 para A-8, the Court held that the mere fact that a document was prepared by an expert does nor preclude the court from determining the due weight to attach. It does not mean that the court should accept everything it states even if it is unchallenged.
Thus, it is not enough for the Respondents to just give a figure. They must show the basis of the calculation.”
I agree with the views of the Appellant as set out above. All the materials necessary for determination of the amount properly due to the Appellant are not before the court. The Respondents did not disclose how they arrived at the figure of a little over seven million naira.
There might be need to call evidence to resolve the matter. It is rather strange that now that the table is turned, the Respondents do not see the point of view of the Appellant. When the Appellant using the Federal High Court Accounts section came up with the figure of over seventy million naira without any input from the Respondents, the Respondents rightly in my view shouted foul and lack of fair hearing. But when the Army Personnel Pay Office came up with their own figure of just seven million naira without full disclosure of how they came by the figure and without any in put from the Appellant, the Respondents consider it fair. They do not think the court should carry out further investigation by taking into consideration the counter affidavit of the Appellant to verify the figure. What is good for the goose is good for the gander. Apart from all the materials not being available to this court to enable us invoke Section 15 of the Court of Appeal Act 2011; there is no real urgency now. The need for expeditious disposal of the case to meet the ends of justice is no longer apparent as the Appellant has already been paid the amount as calculated by the Army Pay office. The only issue now is to determine the accuracy of that figure. There is no doubt that the Appellant would suffer some hardship because the case has already gone on for a long time, but remitting the case to the lower court is the only option as there might be need to call oral evidence to resolve the issue.
In the final result, this appeal succeeds only in part. The ruling of the Federal High Court Lagos Division presided over by Ajakaiye J in suit no. FHC/CS/L/291/01 delivered on the 3rd day of June 2010 is set aside only in respect of Exhibit C, the computation of the Army Personnel Pay Office as to the actual amount due to the Appellant. Contrary to the view of the learned trial Judge that Exhibit C was never contradicted; the Appellant filed a counter affidavit where the figure was vehemently challenged. The case is hereby remitted back to the lower court for the sole purpose of re-hearing the application taking into due consideration the counter affidavit in opposition filed by the Appellant as regards the accuracy or otherwise of the computation of the Army Personnel Pay Office as to the Appellant’s entitlement in line with the judgment of the court delivered on the 13th day of December 2006. I make no order as to costs.
SIDI DAUDA BAGE, J.C.A.: I read before now the judgment just delivered by my learned brother, CHINWE EUGENIA IYIZOBA, ICA, I agree entirely with the judgment. I wish however, to add a few words on the general powers of this court under section 15 of the Court of Appeal Act 2004which provides as follows:
“The Court of Appeal may from time to time make any order necessary for determining the real question in controversy in the appeal, and may amend any degree or error in the record of appeal and may direct the court below to inquire into and certify its 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 filed jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-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 such other directions as to the manner in which the court below shall deal with the case in accordq.nce with the powers of that court or, in file case of an appeal from the court below in that court’s below “appellate jurisdiction, order case to be re-heard by a court of competent jurisdiction.”
The provisions above have been examined by both the apex court and this court. The conditions which must exist for section 15 of the court of Appeal Act to apply includes:
a) “That the High court or trial court had the legal power to adjudicate the matter before the appellate
court entertained it.
b) That the real issue raised by the claim of the Appellant at the High Court or trial court must be capable of being distilled from the grounds of appeal
c) That all necessary materials must be available to the court for consideration.
d) That the need for expeditious disposal of the case to meet the ends of justice must be apparent on the face of the materials presented, and
e) That the justice or lordship that will follow if the case is remitted to the court below must clearly manifest. See: USMAN VS. KADUNA STATE HOUSE OF ASSEMBLY & ORS (20 07) 11 NWLR (Pt.1044) 148 at 161; BALOGUN VS. AGBOOLA (1974) 1 AII NLR (Pt.11) 66; OMOREGIE VS. IDUGREMWSONYE (1985) 3 NWLR (Pt.5) 41; NZEKWU VS. NZEKWU (1989) 2 NWLR (Pt.104) 373.
I am in compete agreement with the lead judgment that the Appellant in this appeal met some but not all the conditions set out for the application of section 15 of the Court of Appeal Act. In the final analysis, the appeal only succeeds in part also by me. The ruling of the trial court is set aside only in part by me. I abide by all the other detail reasonings contained in the leading judgment the order remitting the case back to the lower court for the sole purpose of re-hearing the application, including the order as to costs.
RITA NOSAKHARE PEMU, J.C.A.: I had the priviledge of reading in draft the Judgment just delivered by my brother Chinwe Eugenia Iyizoba JCA, and I agree with her opinion and her conclusions’
Affidavits, being statements of facts, where there exist before a competent court of record, affidavit and counter affidavit in opposition, it is desirable, indeed incumbent, for the trial Judge to peruse the entire affidavit evidence, to enable it arrive at a just conclusion. To rely on an affidavit and ignore an affidavit in opposition, amounts to prejudicing the interest of a party to the suit, and a blatant denial of his right to fair hearing.
The appeal succeeds in part, for the reasons adumbrated in the lead judgment.
I abide by the consequential order made in the lead judgment that this case be remitted back to the lower Court for the purpose of considering the counter-affidavit in opposition challenging the accuracy of the computation of the Appellants entitlement.
No order as to costs.
Appearances
Charles Ajiboye Esq.For Appellant
AND
P. E. Okolue Esq. for the 1st-3rd Respondents
4th Respondent not representedFor Respondent
