A. A. ADEBIYI v. HON. S.T. UMAR (2012)

A. A. ADEBIYI v. HON. S.T. UMAR

(2012)LCN/5123(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 31st day of January, 2012

CA/IL/83/2010

RATIO

ON WHAT DETERMINES A COMPETENT GROUND OF APPEAL

An Issue for determination can only flow from a valid ground of appeal before the Court. In the case of KOTOYE VS SARAKI (1992) 11/12 SCNJ (pt 1) 26, ratio 5, the Supreme Court, (Per Karibi Whyte JSC) said: “Where a ground of appeal cannot be fixed and circumscribed within a particular issue in controversy in the judgment challenged, such ground of appeal cannot justifiably be regarded as related to the decision. Fortiori, no issue for determination can be formulated there from.” See also the case of OLUFEAGBA VS ABDURASHEEM (2010) ALL FWLR (Pt.512) 1034 held 2 on what determines a competent ground of appeal; VICITO FIXED ODDS LTD VS. JOSEPH OJO & ORS (2010) 185 LRCN 166 ratio 1 – “It is trite that a ground of appeal against a decision must relate to and challenge the validity of the ratio of the decision.” PER. ITA G. MBABA, J.C.A

EVALUATION OF EVIDENCE

A judge is barred from basing his findings on his whimsical views, sentiments or feelings and/ or speculations, as he cannot act outside the evidence adduced before him. He cannot also make a case for any party. AUDU v. INEC (No.2) (2010) 13 NWLR (Pt.1212) 456 – “The Court cannot assume the duty of trying aspect of the case of the party when the party has not himself done so.” See also Abubakar v. Yar’Adua (2009) ALL FWLR (Pt.457) 1, held 33, where the Supreme Court said (at page 156): “A Court of law can only pronounce judgment in the light of evidence presented and proved before it. A court of taw cannot go outside the evidence presented and proved before it by embarking on a voyage of discovery in search of other evidence in favour of the parties. Courts of taw do not give judgment according to public opinion or to reflect public opinion, unless such opinion represents or presents the state of the law. This is because the Judge’s clientele is the law and the taw only. Public opinion is, in most instances, built on sentiments and emotions. Both have no company with the taw…” (Per Niki Tobi JSC). Also, in the case of OLUFEAGBU VS ABDUR-RAHEEM (2010) ALL FWLR (Pt.512)1034 held 21, the Supreme Court said “It is not the responsibility of a court to set up for parties a case different from the one set up by the parties themselves in the pleadings and their evidence. It is not the duty of the Court to fish or scuttle around for evidence or go the extent of presuming same when a party fairs to produce it. The type of evidence a court can act on is the evidence which was exposed and canvassed in court. A Judge cannot, by examining documents outside the court, act on what he considers he has discovered on an issue, when that was not supported or brought to the notice of the parties to be agitated in the usual adversarial procedure.” See OHWOVORIOCE VS. FRN (2003) FWLR (Pt.141) 2010; ONIAH VS ONIAH (1989) NWLR (Pt.99) 514.” See also the case of KAPO VS OKORIE (an unreported decision of this Court in) CA/J/79/2010, delivered on 19/5/2011, pages 11, and 12, thereof where it was observed: “I think the short ruling of his Lordship left much in the realms of speculation….. The law is replete with authorities on the need to evaluate evidence and make proper findings on issues’ before reaching conclusion and for reasons to be properly articulated for the decisions reached…” PER. ITA G. MBABA, J.C.A

THE POSITION OF THE LAW WHERE A TRIAL COURT HAS MADE PERVERSE FINDINGS THAT HAS RUN COUNTER TO EVIDENCE

JUSTICES:

TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

Between

A. A. ADEBIYI – Appellant(s)

AND

HON. S.T. UMAR – Respondent(s)

ITA G. MBABA, J.C.A (Delivering the Leading Judgment): Appellant filed this appeal on 9/2/2010, against the interlocutory Ruling of Honourable Justice A. O. Bamigbola in Suit No. KWS/70/2009, which had -dismissed the Appellant’s motion for Summary Judgment on 8/2/10. The grounds of the Appeal, were that:
“(i). The learned Judge erred in law in adopting a double standard when the defendant/respondent did not file or serve a counter affidavit to the Claimant/applicant’s motion filed on 6/1/2010 and argued on 11/1/2010 and ruled upon on 8/2/2010.
Particulars of error-in-law:
(i) His Lordship went on a voyage of his own by looking for weakness in the supporting affidavit when no counter-affidavit was filed or served until 8/2/201 0 when his ruling was delivered
(ii) His Lordship was guilty of double standard in looking for faults in the Claimant/applicant’s supporting affidavit.
(iii) A Court is not expected to be a research institute in order to assist either side.
(iv) An unserved document is irrelevant and cannot be relied upon
(v) The doctrine of fair hearing is raped left and right.
(ii) Other grounds may be filed on the receipt of the record ‘of Proceedings.”
For relief, Appellant sought this Court to give the summary judgment in favour of the claimant/Applicant as prayed. His main case before the trial Court was for that Court to “Order the defendant (who was the Chief Registrar of the High Court) to return all the 157 strips of 736 exposures of negatives (to the claimant)”
His statement of claim was very scanty – only 3 paragraphs, with no detail/explanation, as follows
“(i) On Monday, 26/01/2009, the claimant was paid the outstanding balance of photograph bills in the sum of N104.500.00 but the defendant did not return the claimant’s 157 strips of 736 exposures of colour negatives, which were collected from the claimant during the tenure of the Honourable Justice H. O. Ajayi as the Chief Registrar (before her elevation to the High court seat).
2. The colour negatives were collected for security but were not returned despite written and oral demands as shown by Claimant’s letter Reg. No. APA/APP/C/HO/IL/1/2009 of 13/02/2009, which is now pleaded and shall be rely (sic) upon.
3. Wherefore the claimant prays this Honourable court to order the defendant to return all the 157 strips of 736 exposures of colour negatives.”
The Appellant’s motion for judgment was filed on 6/1/2010 praying the Court as follows
“MOTION ON NOTICE (i) for judgment for default of appearance pursuant to order 17 Rule 1, and (2) for judgment for default of pleadings pursuant to order 29 Rule 4(a) of the High court (civil Procedure) Rules, 2005.
TAKE NOTICE that this Honourable court will be moved … for judgment in default of appearance and in default of pleadings AND for such other or further order or orders as this Honourable court may deem fit in the circumstances.
TAKE FURTHER NOTICE that the ground of this humble application is that the defendant/respondent has defaulted because he has no defence to the writ and/or the pleading (statement of claim).
AND TAKE FURTHER NOTICE that at the hearing of this humble application the applicant shall (i) rely on the affidavit, (2) the writ (3) the statement of claim and (4) supporting written address pursuant to order 41 Rules 1, 2 and 3 of the 2005 Rules of court, which is exhibit 1 hereunder.” (See page 15 of the Record of Appeal).
The Record of Appeal does not show the proceeding of 11/01/2010 when the motion was said to have been moved by the Appellant’s counsel, but by the Ruling of the lower court, delivered on 8/2/2010, it can be appreciated that the Respondent did not contest the motion (application) and did not file any counter-affidavit, though the Respondent’s counsel may have tried to stall the moving of the motion. The trial court, also noted in the ruling that the defendant had filed a memorandum of appearance dated 5/10/2009, through his counsel (Mrs. M. O. Adebisi), but did not respond to both the writ and the statement of claim, because (according to Appellant) the defendant had no reasonable answer to both of them.
The trial Court, however, refused the application and struck it out on the ground that the Applicant had not deposed to sufficient facts in support of the application to make the Court exercise its discretion in his favour and that the Applicant did not deem it fit to include any statement in the affidavit in support that his claim relates to detention of goods. Earlier, the trial judge had held as follows:
“It may be concluded that the Defendant, who is represented by a counsel to defend him in Court, will have a defence to the suit and, that the failure to have his defence before the Court is not the defendant’s but that of his Counsel. In the event, the Court must not take any step that will tend to show it is shutting out the defence. This is to say, that in the circumstance of this case, if the application of the Claimant is granted and judgment is entered summarily for him, such decision will be visiting the sin of counsel on the client. A Court of law and of Justice will not do that:” (See page 20 of the Record of Appeal).
It is against that decision that Appellant filed this appeal. Appellant filed his brief of argument on 28/10/2010 and raised a single issue for determination, namely:
“…whether or not it was proper for the learned judge to look for weakness in the supporting affidavit when there was no counter affidavit filed and/or served by the defendant.”
The Respondent, too, filed his Brief of argument on 25/12/2010 with the leave of this court, granted on 1/6/2011, which deemed the process duly filed. The Respondent raised three Issues for determination, as follows (though counsel said they were two Issues):
“(1) Whether the trial Court can hear and determine the claimant’s Suit without first hearing and determining the preliminary objection (sic) the defendant without raping the defendant of privilege of fair hearing.
(2)Whether the decision of the lower Court can be said to be perverse.
(3)Whether the learned trial Court properly appraised the facts and evidence in the case.”
This appeal was heard on 7/12/2011, when learned counsel on both sides moved this Court accordingly.
It has to be observed and stated, straight away, that the Respondent has, in fact, not raised any credible issue for the determination of this Appeal. The rules governing conduct of appeal require that the issue for determination must be distilled from the grounds of appeal, which must in turn, flow from the decision of Court appealed against. By law and practice of Court, not more than one issue can be distilled from a single ground of appeal, though an issue may be formulated from a combination of two or more grounds of appeal. See the case of AFRIBANK (NIG) PLC VS. YELWA (2011) ALL FWLR (Pt.585) 299 where it was held:
“Any issue not distilled from any ground of appeal is incompetent and must be discountenanced by the court together with the arguments there under, in the consideration of the appeal. Issues raised in the brief of argument must relate and flow from the grounds of appeal before the Court
…Not More than one issue must distil from a single ground of Appeal, although an issue can generate from a combination of grounds of appeal” see also NWAIGWE vs OKERE (2008) ALL FWLR (pt.431) 843; OSENI VS BAJULU (2010) ALL FWLR (Pt 511) 813. See also the case of MARCATHYS AWOR. VS. TOPE & ORS an unreported decision of this Court in EPT/CA/IL/SH/2/2011, delivered on 11/11/2011 pages 12 and 13 thereof.

It can be seen that the Respondent formulated three issues from the single ground of appeal raised by the Appellant, and out of that, the 1st issue is completely out of the purview and contemplation of the Ruling appealed against, as the issue of Respondent’s preliminary objection was never raised in the Ruling of the trial Court, and was never mentioned by the parties in their arguments.

Even though pages 7 to 14 of the Record of Appeal carry a full complaments of Notice of preliminary objection to the Appellant’s suit in the High court, together with the defendant’s address thereof filed on 13/10/2009, there is nothing in the Ruling nor in the arguments of counsel at the hearing of the motion for summary judgment to show that the preliminary objection was in existence. It was the duty of the defence counsel to call the attention of the trial Court to the preliminary objection, at the time of taking the motion for judgment, if it had been filed before then.
This was not done, even when the defence counsel was said to have been in court at the time the motion was moved and had tried fruitlessly to stop it.(See pages 19 and 20 of the Records).

An Issue for determination can only flow from a valid ground of appeal before the Court. In the case of KOTOYE VS SARAKI (1992) 11/12 SCNJ (pt 1) 26, ratio 5, the Supreme Court, (Per Karibi Whyte JSC) said:
“Where a ground of appeal cannot be fixed and circumscribed within a particular issue in controversy in the judgment challenged, such ground of appeal cannot justifiably be regarded as related to the decision. Fortiori, no issue for determination can be formulated there from.” See also the case of OLUFEAGBA VS ABDURASHEEM (2010) ALL FWLR (Pt.512) 1034 held 2 on what determines a competent ground of appeal; VICITO FIXED ODDS LTD VS. JOSEPH OJO & ORS (2010) 185 LRCN 166 ratio 1 – “It is trite that a ground of appeal against a decision must relate to and challenge the validity of the ratio of the decision.”

Of course, it is trite rule that a ground(s) of appeal must be properly located in the judgment under consideration, and must form a strong and ‘valid point of complaint against it, for the appellate Court to assume jurisdiction to consider any issue there from. See the case of Honourable Maryati Audu Dogari & Ors vs A. G. Taraba State & Ors; an unreported decision of this Court in CA/J/243/2010, delivered on 26/5/2011, page 21 thereof.The Respondent’s Counsel also had opportunity to cross appeal or file a Respondent’s Notice, to bring up the issue of the Defendant’s preliminary objection as ground/issue for the determination of this appeal, if the same was material them, but failed to take advantage of same.
By Order 9 Rules (1)(2) and (3) of the Court of Appeal Rules, 2011.
“(i) A Respondent who not having appealed from the decision of the Court below, desires to contend on the appeal, that the decision of that Court should be varied, either in any event or in the event of the appeal being allowed in whole or in part, must give notice to that effect, specifying the grounds of that contention and the precise form of the order which he proposes to ask the Court to make …
(2) A Respondent who desires, to contend on the appeal that the decision of the Court below should be affirmed on grounds other than those relied upon by that court, must give notice to that effect, specifying the grounds of that contention
(3)Except with the leave of the court, a Respondent shall not be entitled on the hearing of the appeal to contend that the decision of the Court below should be varied upon grounds not specified in a notice given under this Rule, to apply for any relief not so specified or to support the decision of the court below upon any ground not relied upon by that Court or specified in such a notice.”
In the case of LATEJU VS. FABAYO, (an unreported decision of the Court in) CA/IL/29/2009, delivered on 17/11/2011, page 22 thereof, similar situation was considered to the effect that:
“The law is that, where a Respondent seeks to move the Appellate Court to affirm the decision of the lower court, but on a different ground, other than the ground(s) relied upon by the trial judge, the respondent ought to file a Respondent’s notice to that effect and outline the said ground he wants to rely on, which the lower court did not consider. See order 9 Rule (1) and (2) of the Court of Appeal Rules, 2011; See also the case Adamawa State House of Assembly 2 ors v. Chubado Batti Tijjani and 23 ors (unreported decision of this Court) in CA/J/304M/2009, delivered on 20/1/2011.”This Court cannot therefore countenance the first issue by the Respondent and the said preliminary objection as the same are not part of the grounds upon which the trial judge based his ruling, or ground specified in the notice of appeal by the Appellant. The issues by the Respondent are accordingly struck out for incompetence, together with the arguments there under.
I shall therefore consider this appeal on the single issue distilled by the Appellant and the arguments thereon.
Learned counsel for the Appellant, prince (Dr) J. O. Ijaodola, characteristically, was extremely brief, as he filed a one page Brief of argument, embodying the heading of the appeal, parties, introduction, issue for determination and argument.
He submitted that the ruling of the court delivered on 8/2/2010 at pages 18-21 of the record shows that the learned trial Judge was excessively fault- finding; that the notice of interlocutory appeal filed on 9/2/2010 at pages 48 – 49 of the record is highly educative. He urged us to determine whether or not it was proper for the learned Judge to look for weaknesses in the supporting affidavit, when there was no counter affidavit filed and/or served by the defendant. In conclusion, he urged us to grant the prayers for summary judgment, pursuant to order 17 Rule 1 and order 29 Rule 4(a) of the Kwara state High court (civil procedure) Rules, 2005. He urged us to allow the appeal and set aside the order of the trial court.
with all the respect I have for learned Senior counsel for the Appellant, I think his brief was too brief and scanty, leaving all the work for the court to do, to establish how “the trial court went on a voyage of his own looking for weaknesses in the supporting affidavit, when no Counter affidavit was filed/served by the defendant” and the effect of same on the ruling. It was his (Appellant’s) duty to address the Court on, the areas of the errors, or perceived errors of the trial judge, and the effect of same on his ruling to assist this Court in reaching an informed and just decision. That is the essence of legal representation, to help the appellant to articulate his case, stating the rules and principles of law that would persuade the Court to rule in his favour.
The above observation, notwithstanding, the Record of Appeal, especially the Ruling of the learned trial judge therein, is before us to construe in the light of the query raised by the Appellant in his lone ground of appeal and the issue distilled therefrom.
Did the trial judge embark on search for faults in the affidavit of the Appellant, when there was no Counter affidavit, and did he apply the perceived weakness of the affidavit to defeat the application for Summary judgment sought by the Appellant?
The case at the lower Court, at the level of the motion was fought on affidavit evidence. The rules governing affidavit evidence and, in fact, any pleading, is that when a fact(s), asserted, is not denied or controverted by the adverse party, who has a duty to do so, the same is deemed to be admitted by him (adverse party), and the Court would be justified to rely on the fact and use it to settle the issue in controversy, if the asserted fact(s) is plausible. That is the purport of Section 75 of Evidence Act, which says:
“No fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing … or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings…”
By law, affidavit evidence is already admissible evidence before the Court and the Court is bound to use and act upon it, once it is not challenged or rebutted, and is credible. See the case of BABA VS. NC.A.T.C (1991) 7 SCNJ 1 , NZERIBE VS. DAVE ENGINEERING CO LTD (1994) 9 SCNJ 161; OYEWOLE VS AKANDE (2009) ALL FWLR (Pt 491)813; AJOMALE VS YADUAT (1991) 5 SCNJ 178 In the case of MAGNUSSON VS KOIKI & ORS (1993) 12 SCANJ 114 held 5, THE Supreme Court said:
“Averments of facts on pleadings must be distinguished from facts deposed to in affidavit in support of application before Court. Whereas, the former, unless admitted, constitutes no evidence, the latter are, by law, evidence upon which a court of law may, in appropriate cases, act.”
Also by rules of practice,
“It is now settled law that an affidavit evidence constitutes evidence and any deposition therein not challenged is deemed admitted.” H. S. Engineering Ltd. Vs. S. A. Yakubu Ltd (2009) 175 LRCN 134, held 2. See also the case of Honourable Maryati Audu Dogari & Ors vs A. G. Taraba State (supra) PP 35 – 36 thereof.Applying that to this case, there is nothing in the Record of Appeal, particularly the Ruling of the lower Court, to show that Respondent denied or contested the averments of the Appellant in support of the Motion for judgment, which showed that there was no response to either the writ of summons nor to the statement of claim, filed by the Appellant on 6/4/2009; that the none response was due to the fact that the defendant (Respondent herein) had no defence to both, and that Appellant was entitled to judgment, summarily. Appellant also averred that the non-filing of any response by the Respondent was intentional and due to the fact that he had no reasonable defence to the claim. See the affidavit and address of Appellant on pages 16 and 17 of the Record.
Surprisingly, instead of dwelling within the confines of the application before him, which the court had no reason to fault as the same was not opposed, the learned trial judge took upon himself to search for reasons to refuse the application and descended into the arena of conflict to play advocate for the Respondent and his Counsel.
I have already reproduced part of the ruling of the learned trial judge in this judgment, which, I think, betrayed his inclination to help the Respondent against the rules of the game.
He had earlier made a correct summation and finding, thus:
“l have read through the affidavit in support of this application. I have also gone through the writ of summons and the statement of claim. The Court has also considered the written address of learned counsel. In view of all the papers filed in this application including the motion paper, the affidavit in support and the address of learned counsel the court is left with no doubt that the sole ground for the application is that, according to Applicant, the Respondent has refused and/or neglected to respond to both the writ and the statement of claim filed by the claimant on 6/4/2009 and served on the respondent.. The fact that the writ of summons and the statement of claim filed by the claimant on 6/4/2009 was served on the defendant/Respondent herein cannot be disputed…”
See page 19 of the Record.
Thereafter, the learned trial judge went on a frolic and said:
“It may be concluded that the defendant, who is represented by a counsel to defend him in court, will have a defence to the suit, that the failure to have his defence before the Court is not the defendant’s but that of counsel. In the event the Court must not take any step that will tend to show it is shutting out the defence. This is to say, that in the circumstance of this case, if the application of the claimant is granted and judgment entered summarily for him, such decision will be visiting the sin of counsel on the Client “(Emphasis mine). (See page 20 of the Record) Of course, there was no evidence to support or base those gratuitous holding of the trial judge There was no evidence to show:
(1) That the Defendant will have a defence
(2) That the failure to have his defence in Court was not that of the defendant;
(3) That the defence counsel was to blame for the failure to file the defence, and
(4) That the application was a call to the Court to shut out the defence!
Also there was no submission or plea before the Court that the ‘sin’ was that of the counsel, which should not be visited on the Client.
The learned trial judge went further to search for why the application should be refused and said:
“Throughout the paragraphs of the affidavit in support, there is nowhere the applicant stated the date the Writ of Summons and the statement of Claim were served on the Defendant/Respondent. There is also nowhere in the affidavit in support to show any deposition to the effect that the Defendant/Respondent is out of time in filing his defence.”
(Page 20 of the Record
But the Court had earlier ruled that there was no doubt that the defendant/Respondent had been served with the writ and the statement of Claim and that the defendant’s failure to respond to both was the ‘sin’ of his Counsel.
That was a clear example of a judge sliding into the arena of battle and covered or blinded by the dusts of conflict. By so doing the learned trial judge forfeited his right/ power to adjudicate in the matter as an impartial judge See the case of FASUBA VS ADUASHI (2001) 17 NWLR (Pt 743) 585.
A judge is barred from basing his findings on his whimsical views, sentiments or feelings and/ or speculations, as he cannot act outside the evidence adduced before him. He cannot also make a case for any party. AUDU v. INEC (No.2) (2010) 13 NWLR (Pt.1212) 456 – “The Court cannot assume the duty of trying aspect of the case of the party when the party has not himself done so.” See also Abubakar v. Yar’Adua (2009) ALL FWLR (Pt.457) 1, held 33, where the Supreme Court said (at page 156):
“A Court of law can only pronounce judgment in the light of evidence presented and proved before it. A court of taw cannot go outside the evidence presented and proved before it by embarking on a voyage of discovery in search of other evidence in favour of the parties. Courts of taw do not give judgment according to public opinion or to reflect public opinion, unless such opinion represents or presents the state of the law. This is because the Judge’s clientele is the law and the taw only. Public opinion is, in most instances, built on sentiments and emotions. Both have no company with the taw…” (Per Niki Tobi JSC).
Also, in the case of OLUFEAGBU VS ABDUR-RAHEEM (2010) ALL FWLR (Pt.512)1034 held 21, the Supreme Court said
“It is not the responsibility of a court to set up for parties a case different from the one set up by the parties themselves in the pleadings and their evidence. It is not the duty of the Court to fish or scuttle around for evidence or go the extent of presuming same when a party fairs to produce it. The type of evidence a court can act on is the evidence which was exposed and canvassed in court. A Judge cannot, by examining documents outside the court, act on what he considers he has discovered on an issue, when that was not supported or brought to the notice of the parties to be agitated in the usual adversarial procedure.”
See OHWOVORIOCE VS. FRN (2003) FWLR (Pt.141) 2010; ONIAH VS ONIAH (1989) NWLR (Pt.99) 514.” See also the case of KAPO VS OKORIE (an unreported decision of this Court in) CA/J/79/2010, delivered on 19/5/2011, pages 11, and 12, thereof where it was observed:
“I think the short ruling of his Lordship left much in the realms of speculation….. The law is replete with authorities on the need to evaluate evidence and make proper findings on issues’ before reaching conclusion and for reasons to be properly articulated for the decisions reached…”

Where a trial Court has made perverse findings that has run counter to evidence and has also taken into account matters, which are irrelevant, in reaching a perverse conclusion, the Appellate Court has a duty to review it and give the correct decision. See the case of OGBE vs ASADE (2010) ALL FWLR (Pt 510) 612, – 5The Ruling by the trial Judge in this appeal was completely out of tune with the evidence adduced and the learned trial judge erred in fishing for reasons, outside the evidence before him, to found his decision. Such decision cannot stand. This Appeal is therefore meritorious and is allowed. The Ruling of the lower Court in suit No. KWS/70/2009 is hereby set aside.
By Order 4 Rule 3 of the Court of Appeal Rules, this Court is empowered to give any judgment and make any order, which ought to have been given or made by the trial court and to make such further order(s) as the justice of the case may require.
I believe, that in the circumstance that the application for summary judgment by the Appellant was not challenged, and the Respondent, having failed to file a defence to the case, to contest the claim for return of the 157 strips of 736 exposures of colour negatives to the Appellant, the application filed on 6/1/2010 ought to have been granted by the lower Court. The application is therefore hereby granted, as prayed, pursuant to Order 29 Rule 4 (a) of the High Court (Civil Procedure) Rules, of Kwara State, 2005.
Accordingly, the Respondent is hereby ordered to return all the 157 strips of 736 exposures of colour negatives to the Appellant.
The parties shall bear their respective costs.

TIJJANI ABDULLAHI, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother, Mbaba, JCA just delivered. I am in complete agreement with his reasoning and conclusions which led to the appeal being allowed.
It needs to be stressed with due respect to learned Counsel that the purpose of filing briefs by Counsel in the Court of Appeal and indeed any Court for that matter, is now well known and that the learned Senior Counsel needs not to be told how such Briefs should be written. I say no more on this save to say that I am in complete agreement with my learned law Lord, that the Senior Counsel was extremely brief in the brief he filed in this appeal. A one page Brief no matter from whatever angle you look at it, should not be a brief that is intended for use by the penultimate Court in the hierarchy of Courts we have in this country.
Having said that, I too allow the appeal and abide by the Order on costs contained therein.

IGNATIUS IGWE AGUBE, J.C.A.: I have been privileged to read the lead judgment of my learned brother I. G. Mbaba, JCA., and I agree completely that the learned trial judge descended into the arena of the conflict between the parties by foraging for loopholes in the affidavit of the Appellant in order to stultify his case in the lower court. Definitely, as my lord has rightly observed, having plunged himself into the miasma and murky waters of the contest, his face must either be bloodied or covered with the mud of the contest.
Where the Respondent did not proffer any answer to the affidavit and indeed the statement of claim of the Appellant in any manner whatsoever, the lower court had no business playing the role of an errand boy for an unwilling litigant nay his counsel. Indeed in Akinfe v. The State (1988) 3 NWIR (pt.85) 729 at 748; Eso JSC, one of our illustrious Judicial Icons, had pontificated on the role of Judges in the adjudicatory process and admonished that in holding the scale or balance between parties to a dispute in our adversarial system, the Judge as an impartial arbiter need not be necessarily mechanistic. He thinks deeply in the course of resolution of the conflict between the parties. He may wish to bring out impartially what appears to be obscure in which case he is not expected to be a zombie or dummy.
According to the emeritus Law Lord, “whet is wrong and what is unacceptable in adversarial contest, is for the Judge, who shall remain en impartial referee throughout, en umpire not only to be respected but to be trusted in arriving at a decision which necessarily must hurt one party, not to jump into the arena, take sides with one of the contestants. For this strikes dismay to onlookers. It is a drama that drowns justice on its administration.”
See also Green v. Green (1987) 3 NWLR (pt. 61) 480 at 515.
By assuming the position of lord advocate for the Respondent where it is apparent from the Record of proceedings that the Defendant/Respondent had no defence in law to the claim of the Appellant, the learned trial fudge failed in his adjudicatory duty and displayed patent bias against the Appellant. The Appellant was therefore deprived of his right to fair hearing. See Isiyaku Mohammed v. Kano N.A. (1968) 1 ALL NLR 42 per Ademola CJN and Unongo v. Aku (1983) 2 SCNLR 332 per Eso JSC On the authorities of Fasuba v. Adaushi (2007) 17 NWLR (pt.742) 585; Audu v. INEC (No.2) (2010) 13 NWLR (pt .1212) 456; Abubakar Yar’dua (2009) All FWLR (pt. 457) 1 at Ratio 33; Olufeagba v. Abdul- Raheem (2010) All FWLR (pt.512) 1034 and other cases cited by my noble lord in his lead judgment to articulate the perverse nature of the learned trial Judges’ Ruling; and for the fuller reasons advanced therein, I also hold that this appeal is meritorious and hereby succeeds. The Ruling of the lower court which is the subject of this appeal is hereby set aside and judgment entered in favour of the Plaintiff/Appellant.
I abide by all other consequential orders including costs.

Appearances

Prince (Dr.) J. O. Ijaodola For Appellant

AND

Adebisi M. O. (Mrs.) (SSC) For Respondent