CHIEF PETER IDOKO v. IDOMA AREA TRADITIONAL COUNCIL & ORS
(2019)LCN/12504(CA)
In The Court of Appeal of Nigeria
On Friday, the 12th day of April, 2019
CA/MK/55/2014
RATIO
COURT AND PROCEDURE: WHERE A CASE IS RAISED SUO MOTO
“A Court is bound to decide a case on the issues properly raised and canvassed by the parties. However, a Court may, for the sake of attaining the ends of justice, raise an issue suo motu. Where the Court does so, the general position of the law is that it must afford the parties an opportunity to be heard before it can determine the case on the issue. Where it is established that the issue raised suo motu by the Court without affording the parties a hearing is fundamental and has occasioned a miscarriage of justice, the parties’ right to fair hearing would have been breached and the proceedings are liable to be set aside. See Chami V UBA Plc (2010) 6 NWLR (Pt. 1191) 474, Yar’Adua V Yandoma (2015) 4 NWLR (Pt. 1448) 123 and Mainstreet Bank Ltd V Binna (2016) 12 NWLR (Pt. 1526) 316.” PER JOSEPH EYO EKANEM J.C.A.
JURISDICTION: WHERE ISSUE OF JURISDICTION ARISES
“Jurisdiction is always a threshold issue. If a Court has no jurisdiction to entertain a suit, no matter how well conducted the proceedings, its decision amount to a nullity. Although the proper step to take is to invite the parties to address the Court on that issue of jurisdiction, the Court will not set aside a correct decision on the ground that the trial Court had no jurisdiction merely on the ground that counsel were not invited to address the trial Court on it; National Bank of Nigeria Ltd. v. Weide & Co. Nigeria Limited & Ors (1996) LPELR-1954(SC). In Katto v. Central Bank of Nigeria (1991) LPELR-1678(SC), the Supreme Court recognized that the issue of jurisdiction could be raised suo motu by the Court but cautioned, page 31 of the E-Report:
‘However in taking the question of Jurisdiction suo motu prudence and the principle of fair hearing demand that counsel be given opportunity to be heard on the issue before a decision is arrived at.
This Court will however not set aside a correct decision that the trial Court had no jurisdiction merely on the ground that counsel were not invited to address the trial Court on it.'” JOSEPH TINE TUR J.C.A.
JUSTICES
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
CHIEF PETER IDOKO
(For himself and as Representative of Okpale Clan In Edumoga District of Okpokwu Local Government Council) Appellant(s)
AND
1. IDOMA AREA TRADITIONAL COUNCIL
2. THE PRESIDENT, IDOMA AREA TRADITIONAL COUNCIL
3. CHRISTOPHER IDU
4. MATHIAS OKOLIKO
5. CHIEF S.S. ABAH
6. MR. ABEL ABAH Respondent(s)
JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment):
I have headed the resolution of the dispute submitted to this Court by the appellant and the respondents as a ‘determination’ by virtue of the provisions of Sections 294(2) and 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 which provides as follows:-
294(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion:
Provided that it shall not be necessary for all the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.
318(1) In this Constitution unless it is otherwise expressly provided or the con otherwise requires:-
Decision means, in the relation to a Court, any determination of that Court and includes judgment; decree, order, conviction, sentence or recommendation.
I could have headed same as a ‘decision’ or an ‘opinion’ to conform with the above provisions of the Constitution. ‘Any determination’ in the Court of Appeal is a ‘decision’ or an ‘opinion’ under Section 294(2) and 318(1) of the Constitution. The High Court of Justice of Benue State, holden at Okpoga, presided by Igoh, J., determined the dispute between the appellant and the respondents under Sections 36(1) and 294(1) of the Constitution, couched as follows:-
36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.
294(1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.
The resolution of the dispute or controversy by Igoh, J., was a ‘determination’ or a ‘decision’ under Section 36(1) and 294(1) of the Constitution. The appellants have appealed to the Court of Appeal by invoking the provisions of Section 294(1) of the Constitution. The National Assembly envisaged that every Court established by the Constitution of the Federal Republic of Nigeria, 1999 with effect from 29th May, 1999 is to determine the dispute after conclusion of hearing and final addresses within ninety days and the parties should be served with duly authenticated copies of the ‘decision’ or ‘determination’ within the time stipulated in Section 294(1) of the Constitution. A violation of the time for rendering decision condition set down in Section 294(1) of the Constitution is curable under Section 294(5) and (6) of the Constitution which reads as follows:-
294(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this section unless the Court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.
(6)As soon as possible after hearing and deciding any case in which it has been determined or observed that there was non-compliance with the provisions of Subsection (1) of this section, the person presiding at the sitting of the Court shall send a report on the case to the Chairman of the National Judicial Council who shall keep the Council informed of such action as the Council may deem fit.
Appeals are heard and determined in the Court of Appeal on briefs of argument supported by a record of appeal hence no time is stipulated in Section 294(2) of the Constitution for determining an appeal after the parties or their respective learned Counsel have argued the appeal. In Maxwell On the Interpretation of Statutes, 12th edition by P. St. J. Langan, page 33 appears the following passage:-
It is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express. Lord Mersey said: ‘It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do.’
We are not entitled, said Lord Lorebun, L.C., ?to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself.? A case not provided for in a statute is not to be dealt with merely because there seems no good reason why it should have been omitted, and the omission appears in consequence to have been unintentional.
Section 294(3) of the Constitution provides as follows:-
294(3) A decision of a Court consisting of more than one Judge shall be determined by the opinion of the majority of its members.
Every Justice of the Court of Appeal that heard argument in this appeal is at liberty to render an ‘opinion’, a ‘decision’ or a determination by virtue of Sections 294(2)-(3) of the Constitution. There is nothing like a ‘lead’ or dissenting ‘opinion’; ‘decision’ or ‘determination’ under Section 294(2)-(3) of the Constitution. What matters is the decision, opinion or determination by the majority of the Justices that heard arguments on appeal. The learned authors of Black’s Law Dictionary, 9th edition, page 514 defines ‘determination’ as:-
1. A final decision by a Court or administrative agency (the Court’s determination of the issue). (Cases: Administrative Law and Procedure, 489, Federal Civil Procedure, 928).
Initial determination: The first determination made by the Social Security Administration of a person?s eligibility for benefits. (Cases: Social Security and Public Welfare.
2. The ending or expiration of an estate or interest in property, or of a right, power, or authority (the easement’s determination after four years) determine, vb.
Osborn’s Concise Law Dictionary, 12th edition, page 144 also defines a ‘determine’ as (1) To come to an end; (2) to decide an issue or appeal.
In Words and Phrases Legally Defined Vol. 2 (D-H) by John B. Saunders ‘determination’ and to ‘determine’ and their legal connotation are defined and supported by judicial reasoning from jurists of renown from Commonwealth countries which ought to guide learned Judges and Justices in Nigeria in the administration of law and justice at pages 63-64 as follows:-
A determinable interest comes to an end automatically upon the occurrence of the terminating event, as for example upon the remarriage of a woman to whom an estate has been granted during her widowhood. This is inevitable, for according to the limitation itself, i.e. according to the words fixing the space of time for which the widow’s right of enjoyment is to continue, her interest ceases with her remarriage and nothing remains to be done to defeat her right. There can, indeed, be no question of defeating what has already come to an end. (Cheshire’s Modern Real Property (10th Edition) 281).
It is said that ‘termination’ and ‘determination’ do not mean the same thing; that ‘termination’ means the thing coming to its natural end; ‘determination’ means coming to what I may call a violent end, that is, an end which was not contemplated as the longest duration, such as coming to an end by an unexpected death. I do not think that this is either the popular or the legal distinction between the two terms. Supposing a term were created of fifty years, determinable at the death of ‘A’, would it be legally inappropriate to say, that such term is determinable either by effluxion of time or by the death of ?A And as to the grammatical or popular use of the term it is rather remarkable that, in Todd’s edition of Johnson’s Dictionary, the fourth sense given of the word ‘determination’ is ‘expiration’. ‘end’. And the lexicographer adds, ‘Used only by lawyers; as, from and after the determination of the said lease.’
The word ‘determination’ may properly, and according to legal as well as to ordinary use, signify the coming to an end in any way whatever. That appears to me to be the honest mode of construing the word.? St. Aubyn vs. St. Aubyn (1861), 1 Drew & Sm. 611, per Kindersley, V.-C., at pp. 618, 619.
The words of the condition (in a bond) are, ‘if the determination of the said action shall be in favour of the plaintiff,’ etc. We are of opinion that, as there was at the commencement of this action a judgment in favour of the plaintiff, and there was no stay of execution on the judgment, such a state of things amounts to ‘a determination’ of the action in favour of the plaintiff within the meaning of the condition.
Where, as in this case, the plaintiff has obtained a judgment in his favour, and is in a condition to enforce it by execution, the action, as far as he is concerned, may be properly said to be determined in his favour. Burnaby vs. Earle (1874) L.R. 9 Q.B. 490, per Lush, J., at p.493.
There is a ?con in Chapter 3 of the Income Tax Act, 1952, which relates to ‘Appeals and Relief for Mistake’ and comprises Section 50 to Section 66. Thus, in Section 50(2) there is the phrase ‘An appeal, once determined by the commissioners, shall be final, and neither the determination of the commissioners nor the assessment made thereon shall be altered, except It is plain that there the words ‘determined’ and ‘determination’ are equivalent to: decided and decision, and are quite incapable of being understood to mean an assessment or the amount stated in an assessment.’ Muir vs. Inland Revenue Commissioners, (1966) 3 All E.R. 38, C.A. per Winn, L.J. at p.48.
NEW ZEALAND – ‘Article 19 (of a partnership agreement)’ says: ‘Upon the determination of the partnership the assets of the firm shall be realized The word ‘determination appears to me to be used for ‘termination’, and usage shows that they are now used interchangeably.’ Rushbrook vs. Bridgeman (1910), 29 N.Z.L.R. 1184, per Stout, C.J., at p.1189; also reported 13 G.L.R. 178, at p.180.
DETERMINE:
I doubt whether it is correct to say that, where, under a settlement, a person, who has a right to appoint an annual sum to one of a number of persons as he may think fit, and duly makes such an appointment, he thereby ‘determines’ any provision of the settlement. Be that as it may, it is, I think, clear that in the Section under consideration (Section 38(1)(a) of the Finance Act, 1938 (repealed; see now Section 38(1)(a) of the Income Tax Act, 1952, as amended by Section 21 of the Finance Act, 1958) the word is used in relation to the determination of a provision in a settlement ‘by virtue or in consequence’ whereof a sum of money is payable by the ‘settlor or the wife or husband of the settlor’: and that the power to determine any other provision of a settlement does not bring it within the provisions of Section 38(1)(a) at all. Assuming, however, that the respondent has power to appoint to himself as an employee of a company of which he is or has been a director, and assuming that by making that appointment he would determine all the provisions of the settlement in favour of the other possible beneficiaries, the result is that any sum payable by the respondent by virtue of, or in consequence of, the provisions of settlement so determined would be treated as his income. It seems, I think, clear that the words ‘otherwise determine’ mean the determination of a provision in the settlement whereby a sum of money becomes payable by the settlor, and nothing else.’
Inland Revenue Commissioners vs. Dan Fitte (1942) 2 All E.R. 500, per Maccnaghten, J., at p.503.
‘It was argued with ingenuity that an interest cannot determine until it has begun, and that an interest cannot begin until it takes effect in possession, and from these premises the conclusion was adduced that the interests which were to determine’ must be only and exclusively interests in possession. In my judgment, no such inference can be drawn from the use of the word ‘determine.’ There is one very good reason. By definition from the terms of the clause itself the interests which are to determine are all the interests of the son or daughter and his or her issue. They all determine uno flatu and at once. Obviously of those interests only one could be an interest in possession in any event; all the others must ex necessitate be interests in remainder or reversion. Therefore, if the use of the word ‘determine’ introduces any ambiguity of the kind suggested, the testatrix had made herself her own dictionary and showed that in her view, at all events, an interest in expectancy can ‘determine’. If corroboration of that view be needed, some slight support is to be found in the provisions of the Finance Act, 1894, which contains an exemption from death duties with respect to certain expectant interests. Section 5(3) of that Act provides:
‘In the case of settled property, where the interest of any person under the settlement fails or determines by reason of his death before it becomes an interest in possession, and subsection limitations under the settlement continue to subsist, the property shall not be deemed to pass on his death. There is thus, at all events, statutory authority, if authority be needed, for the view that an interest can be accurately described as ‘determining’ if it fails while it is yet reversionary in character.’
Re Wilson’s Will Trusts, Tyron vs. Bromley-Wilson, (1950) 2 All E.R. 955, C.A., per Jenkins, L.J. at p.961.
The important words in Section 36(1)-(2), 294(1), (2) and 318(1) of the Constitution are to ‘determine’ or ‘determination’. These have been judicially interpreted or explained by the Supreme Court in Deduwa Vs. Okorodudu (1976) 1 NMLR 236 per Alexander C.J.N. at pages 243-244 to wit:
‘More light is thrown on the meaning of the words ‘decision’ and ‘determination’ in the case of the Automatic Telephone and Electric Co. Ltd. vs. The Federal Military Government of the Republic of Nigeria (1968) 1 All NLR 429 where Ademola, CJN in giving the ruling of the Court said at page 432: ‘We have been referred to the Shorter Oxford Dictionary for the meaning of determination. It means ‘a bringing or coming to an end’ or (the mental action of coming to a decision,’ or ‘the resolving of a question’).
In Oaten vs. Auty (1919) 2 K.B. 278, Bray, J., at page 284 interprets the word ‘determine’ as meaning ‘make an end of the matter.’ In our own experience in this (Supreme Court), we send a matter back to the High Court for a rehearing and determination; the word ‘determination’ therein meaning ‘ending of the matter’.
In Baba vs. Civil Aviation (1991) 6 SCNJ 1, Karibi-Whyte, JSC held at page 25 that:-
‘The term determination in this con means reaching a decision. Where, as in this case, the body is merely exploring or investigating the facts with no intention or power to decide, there is, in my view, no determination. So, contrary to the submission of learned Counsel for the appellant, the question of fair hearing in terms of Section 33(1) of the Constitution, 1979 did not arise under the Affini Panel.’
With these observations I shall proceed to consider this appeal on the merit.
Chief Peter Idoko commenced the proceedings now the subject of this appeal by way of an Originating Summons before the High Court of Justice of Benue State holden at Okpoga on 10th May, 2011 against the respondents. The appellant prayed that Igoh, J., determine the questions set down in the Originating Summons at page 6 of the printed record as follows:-
1. Whether by the clear and unambiguous provisions of the Government Views and Decisions on the Report of the Review Committee on Petitions against Government views and Decisions on the Report of the Panel on Idoma Area Chieftaincy Disputes, dated 10th August, 1979, the defendants either by themselves or through a Committee, appoint, select or recommend for appointment of any body or person outside of Okpale Clan in Edumoga District of Okpokwu Local Government Council as the next substantive District Head (Ede) of Edumoga District.
2. Whether in view of the provisions or views of Government contained in the Government Views and Decisions on the Report of the Review Committee on Petitions against Government views and Decisions on the Report of the Panel on Idoma Area Chieftaincy Disputes, dated 10th August, 1979, it is not the exclusive prerogative of the Okpale Clan in Edumoga District to produce the next substantive District Head (Ede) of Edumoga District.
3. Whether in view of the provisions or views of Government contained in the Government views and Decisions on the Report of the Review Committee on Petitions against Government Views and Decisions on the Report of the Panel on Idoma Area Chieftaincy Disputes dated 10th August, 1979, the defendants can exclude Okpale Clan in the appointment or consideration for appointment of the next substantive District Head (Ede) of Edumoga District.
Chief Peter Idoko sought the following reliefs against the respondents in the lower Court at pages 7-8 of the printed record:-
(a) A DECLARATION that it is the exclusive prerogative or turn of Okpale Clan in Edumoga District of Okpokwu Local Government Council of Benue State to produce the next District Head (Ede) of Edumoga District.
(b) A DECLARATION that any purported recognition or consideration of any other Clan in Edumoga District of Okpokwu Local Government Council of Benue State in the selection or appointment of the next District Head (Ede) of Edumoga District by the defendants is null and void and of no consequence however.
(c) A DECLARATION that the defendants cannot legitimately exclude or have powers to exclude the Okpale Clan of Edumoga District of Okpokwu Local Government Council in the selection or appointment of the next District Head (Ede) of Edumoga District.
(d) A DECLARATION that the plaintiff being the current Clan Head of Okpale Clan in Edumoga District is the rightful person to be selected or appointed as the next District Head (Ede) of Edumoga District in Okpokwu Local Government Council of Benue State.
(e) AN ORDER of injunction restraining the defendants, their agents, privies and all others acting for or on their behalf from appointing or selecting or considering for appointment or selection of any body or person from outside Okpale Clan of Edumoga District as the next District Head (Ede) of Edumoga District in Okpokwu Local Government Council of Benue State.
Chief Peter Idoko filed a Notice of Appeal on 15th September, 2013 on the following grounds:-
1.The learned trial Judge of the lower Court erred in law when he suo motu raised the issue of whether Edumoga is still a District under the Laws of Benue State or under custom and proceeded to answer same suo motu without reference to the Counsel to address him on the issue so raised before arriving at the decision dismissing the appellant’s suit and thereby occasioning a miscarriage of justice or denial of fair hearing.
PARTICULARS OF ERROR:
(i)The appellant’s case at the lower Court relates to the stool or office of the District Head of Edumoga District in Okpokwu Local Government Council of Benue State.
(ii)The parties in their respective addresses and other processes filed before the lower Court are at ad idem as to the status of Edumoga as a District in Okpokwu Local Government Council with the appellant and the 3rd – 6th respondents laying claim to the said office or stool.
(iii) The lower Court found as of fact that the current turn to produce the District Head of Edumoga District was that of Okpale Clan represented by the appellant but made a summersault and raised the issue as to whether Edumoga is still a District under the Laws of Benue State or under custom and thereafter proceeded to answer same without inviting the lawyers representing the parties to address him on the issue so raised, thereby denying them a right to fair hearing.
(iv) The law is settled that where the Court raises an issue which has not been addressed upon by the parties, the Court must or ought to invite the parties to address it on the new issue raised before taking a decision based on such issue.
(v) The lower Court erred when it failed to invite the parties or their Counsel to address it on the status of Edumoga which was raised suo motu.
2. The learned trial Judge of the lower Court erred in law in dismissing the appellant’s claim before him after making a finding that Edumoga District does not exist as such under the Laws of Benue State or under custom to warrant the appointment of a District Head which was the subject matter of the claim before the Court.
PARTICULARS OF ERROR:
(i)The lower Court having found that the subject matter of the claim was not shown to exist under law or custom was wrong to have proceeded to dismiss the claim.
(ii)The law is settled that where the Court finds that the cause of action does not exist or that it has no jurisdiction over the subject matter, the appropriate order to make is one striking out the case and not an order of dismissal.
The brief of argument by Chief Peter Idoko was filed on 15th April, 2014 setting forth the alone issue for determination at pages 3-4 to wit:-
‘Whether the lower Court was right to have raised the issue of whether Edumoga is still a district under the Laws of Benue State or under custom to warrant the appointment of a District Head that was the subject matter of the case before the Court suo motu and thereafter proceeded to answer same without affording the parties opportunity to address the Court on the issue so raised before dismissing the appellant’s suit upon the said issue.’
This issue is formulated from the two (2) grounds of appeal contained in the Notice of Appeal.
Igoh, J.. heard argument from learned Counsel representing the parties, reliance being placed by the parties on affidavit and counter-affidavits coupled with documentary exhibits before holding at page 193 lines 14 to page 195 lines 1-23 of the printed record as follows:-
‘In a preliminary objection on this very issue raised by the 3rd defendant, I ruled on the 28th March, 2012 that originating process is appropriate. I find no good reason now to depart from that view. Infact the case before me simply calls for interpretation of two documents as contained in Exhibits ‘A’ and ‘B’ to originating process. The fact that the defendants have introduced some extraneous matters do not make the facts in issue substantial dispute. I therefore do not subscribe to the view of the defence that writ of summons as opposed to originating summons is the appropriate form of action in this case.
From the affidavit evidence before me, the real issue for determination is, with the demise of the holder of office, who is or which clan is the appropriate candidate/clan to the office of District Head (Ede) of Edumoga. The real question for my determination is whether Edumoga is a District to which there will be contest to District Headship. The Idoma Native Authority District Council Instrument, 1962 made pursuant to the Native Authority Law Cap.77, Laws of Northern Nigeria created 22 District areas for the then Idoma Native Authority. The Local Government Law, 1976 however repealed the then Native Authority Law. In 1981 the District Areas (Establishment) Law, 1981 came into existence but was later repealed by the District Areas (Establishment) Abolition Edict, 1985. On 1st November, 1991, the office of the Deputy Governor, Benue State appointed District heads in Idoma. Under Okpokwu Local Government we have the following Districts and the District headships:-
(1) Ingle District – Koko Agbidi
(2) Amejo District – Onah Owojechome
(3) Ojoga District – Lawrence Ogenyi
(4) Ichama Central District – George Apochi
(5) Okpoga District – Paul Obeye
(6) Okpoga East District – Bartholomew
(7) Ugbokolo District – Michael Ogboji
(8) Okpale District – Peter Idoko
(9) Ojigo District – Daniel A. Adulugba
(10) Okpoga South District – Abah Okpe
No reference or mention was made of any District called Edumoga District. On the 27th day of December, 2007, the Local Government Law, 2007 came into existence and by Section 156(1) the Local Government Law No.14 of 1976 and the Local Government (Establishment) Law, 2000 were repealed. The extant law on Local Government Administration is the Local Government Law, 2007. It provides in Section 3(2) thus:-
‘The existing Local Government Areas in the State as listed in column ?A? of the first schedule to this Law shall be deemed to have been established under this law.’
The Area listed in column ‘B’ of the first schedule from Okpokwu Local Government Area of authority by reference to (Council Ward/Distric) are as follows:-
‘Ojoga, Okpoga West, Okpoga Central, Ichama II, Okpoga North, Okpoga South, Okonobo, Okpale/Ingle, Eke, Ugbokolo, Amejo, Ojigo.’
Under the new system of Local Government administration, there is nothing like Edumoga District. Exhibit II to 4th defendant’s counter-affidavit makes no pretension on the issue, neither did the Benue State Appointment and Deposition of Chiefs Law Cap.28, Laws of Benue State, 2004. My attention has not been drawn to any legislation that has created Edumoga District, nor my attention drawn to any custom creating same. The question of who succeeds to the throne of the District Head of Edumoga, a nonexistent body therefore does not arise. Since there is no District now known as Edumoga District, the issue of selection or appointment of District Head into the office will be a futile exercise. There is therefore no basis for the claims and reliefs sought by the plaintiff as this Court cannot give a decision that is incapable of being enforced or executed. It is for this reason that I find no merit in the claim of the plaintiff which is hereby dismissed.
Mr. Mathias Okoliko filed a Notice of Appeal on 29th October, 2013 on three grounds of appeal without filing a brief of argument. I invoke the provisions of Order 19 Rule 10(2) of the Court of Appeal Rules, 2016 which provides as follows:-
10(2) Where an appellant fails to file his brief within the time provided for in Rule 2 of this Order, or within the time as extended by the Court, the Court may suo motu dismiss the appeal for want of prosecution.
In Helton I. Orobator vs. Mrs. Mercy Amata (1981) 5 SC 169 (Reprint) a five member panel of Justices of the Supreme Court held from page 169-170 as follows:-
G.S. SOWEMIMO, JSC:- There is no substance in this application. The appeal is hereby dismissed since no brief was filed. The record of appeal has been with the appellant’s solicitor since March, 1981 and nothing has been done till this morning. As stated earlier on, the appeal is dismissed with N300 costs.
C. IDIGBE, JSC:- There is no merit in this application; nor has the application shown sufficient reasons for failure to comply with Order 9 Rule 3, Supreme Court Rules, 1977, nor for this Court not applying the terms of Rule 7 thereof. In my view it is time that Legal Practitioners realized that this Court should be treated with the respect it deserves. There is too much laxity these days on the part of a good number of legal practitioners in bringing appeals to this Court; and for my part, this must stop. I see no merit in this application. This appeal is dismissed. Costs to the respondents N300.00.
A.O. OBASEKI, JSC:- I agree with my learned brother, Sowemimo, JSC, to dismiss this application.
The reasons for the application are in my view, not sufficient to exercise the discretion of the Court in favour of the application and I would dismiss the application. It is dismissed.
The appeal is also dismissed under Order 9 Rule 7 of the Supreme Court Rules, 1977 with N300.00 (Three Hundred Naira) to the respondent.
K. ESO, JSC:- I am not disposed to grant an extension of time in this case. The appellant?s solicitor was seised of the record of appeal since March. No brief was filed until 8th April, 1981 when the time to file the brief expired. An application has now been filed in this Court on 21st May, 1981 seeking extension of time within which to file the appellant’s brief. Indeed by paragraph 8 of the affidavit the solicitor has been aware since early in May that this case is fixed for today, yet Counsel did not consider it right to attach the brief he intends to file were we to grant him leave.
It is time Counsel and litigants cease to treat this Court with levity. Counsel’s attitude in this case is that he could just walk to the Supreme Court on such flimsy excuse and obtain relief.
The appeal is dismissed with N300 costs to respondent.
A.N. ANIAGOLU, JSC:- I think this application should be refused. The applicant systematically absented himself from appearance in the High Court until the learned trial Judge who throughout the period bent over backwards to accommodate the applicant by almost interminable adjournments of the case, proceeded to hear the case. He was forced to hear the case for the plaintiff and even after the plaintiff had closed her case adjourned the case on several dates from 17th June, 1977 to 22nd May, 1978. Now before this Court the brief would not be filed. There is a limit to indulgence. This application is dismissed with N300.00 costs to the respondent.
In Balarabe Musa vs. Auta Hamza (1982) 7 SC 118 or (1982) 13 NSCC 219, a full panel of seven Justices of the Supreme Court presided by Fatayi-Williams, C.J.N. again held from pages 122-123 to wit:-
FATAYI-WILLIAMS, CJN: This is an application for an order dismissing this appeal for want of prosecution, the appellant having failed to file his brief of argument within the time specified in Rule 3(1) of Order 9 of the Rules of this Court. There is no doubt that the appellant has failed to comply with this particular rule.
Some time in 1981, the appellant lodged an appeal to this Court against the judgment of the Federal Court of Appeal but he failed to file his brief of argument within the specified time.
On 24th May, 1982, his application for extension of time within which to file his brief of argument was refused by this Court. There would, therefore, appear to be no brief of argument before us in respect of the appeal.
For these reasons, I am of the view that this application is well-founded. No argument of any substance has been put forward to counter the points made by learned Counsel for the respondents in support of the application. The application is, therefore, granted and pursuant to the provisions or Order 9 Rule 7 of the said Rules, the appeal in Appeal No.SC.2/1982 is hereby dismissed for want of prosecution. Costs in favour of the respondents are assessed at N300.00.
IRIKEFE, JSC: I agree with the ruling just read by the learned Chief Justice of Nigeria in this matter. I also agree with the order as to costs.
BELLO, JSC: The appellant having failed to file a brief within time, I agree the appeal should be dismissed by virtue of Order 9 Rule 7 of the Supreme Court Rules, 1977 with N300.00 costs to the respondents.
IDIGBE, JSC: I agree that this application be granted and that this appeal be dismissed for want of prosecution. This Court earlier refused an application to file a brief out of time prescribed by the Supreme Court Rules, 1977. In the circumstances, there is no brief in support of this appeal and following the provisions of the Rules, this appeal must be dismissed for want of prosecution. I endorse the order made by my learned brother the Chief Justice of Nigeria.
OBASEKI, JSC: I agree with the ruling of my learned brother, Fatayi-Williams, CJN. Nothing said so far by Counsel for the respondents has shown that he appreciates that the Supreme Court Rules form part of the law to be complied with strictly. They form an indispensable part of our law and the fact that discretion is reserved to the Court to relax its hardship where exceptional circumstances is shown, should not be interpreted as non-existence of the Rules.
I can see no escape route for the appellant/respondent in this application. In fact if this application had been before the Court when the application for extension of time filed by the respondent was heard, this matter would have been concluded long ago.
The appeal will properly in my view be dismissed for non prosecution under Order 9 Rule 7 Supreme Court Rules, 1977 and I hereby dismiss it with the same amount of costs as ordered by Fatayi-Williams, CJN.
ESO, JSC: I agree that the appeal be dismissed. The application for extension of time within which to file the appellant’s brief having been dismissed under Order 9 Rule 7 coupled with the Practice Direction of 26th April, 1982, this appeal should and it hereby dismissed with costs as ordered by the learned Chief Justice of Nigeria.
ANIAGOLU, JSC: Order 9 Rule 7 of the Supreme Court Rules and the Practice Directions dated 26th April, 1982 make it imperative that briefs of argument, on appeals, should be filed within time. The necessity of parties adhering to the Rules of the Supreme Court had been emphasized times without number, including the judgment of this Court in Ukpe Ibodo & Ors. vs. Iquasi Enarofia & Ors. (1980) 5-7 SC 42 at p.57-9. Appellant in this appeal applied for extension of time within which to file brief but the application was refused on 24th May, 1982. The result is that there is no brief filed in this appeal and with the refusal of the application for extension of time to file brief, none can be filed.
I cannot see that if no exceptional circumstances had been shown justifying extension of time to file brief resulting in the refusal of the application thereto, that ruling should now be circumvented by a grant of leave for the respondent to adduce oral argument, in lieu of brief, under Order 9 Rule 6(5) of the Supreme Court Rules.
Accordingly, this appeal must be, and is hereby dismissed, under Order 9 Rule 7 of the Supreme Court Rules with costs as contained in the order of the Chief Justice.
An appeal is a continuation of a hearing of the dispute, in this case, the Originating Summons by the claimant in the Court of Appeal on the issues formulated by the appellant that have arisen from the grounds of appeal. That is the purport of Order 7 Rule 2(1), (2)-(3), 3-5 of the Court of Appeal Rules, 2016:-
2(1)All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called ?the notice of appeal?) to be filed in the registry of the Court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for on such parties.
(2)Where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.
(3)The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.
3. Any ground which is vague or general in term or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.
4. The appellant shall not without the leave of the Court urge or be heard in support of any ground of appeal not mentioned in the notice of appeal, but the Court may in its discretion allow the appellant to amend the grounds of appeal upon payment of fees prescribed for making such amendment and upon such terms as the Court may deem just.
5.Notwithstanding the forgoing provisions the Court in deciding the appeal shall not be confined to the grounds set forth by the appellant; Provided that the Court shall not if it allows the appeal, rest its decision on any ground not set forth by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground.
Appeals are to be argued in the Court of Appeal on briefs of argument. The appellants’ issues for determination are to arise from the original, amended or additional grounds of appeal under Order 19 Rule 3(1)-(4) and 5 of the Court of Appeal Rules, 2016 to wit:-
3(1)The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are in the appellant’s view, the issues arising in the appeal as well as amended or additional grounds of appeal.
(2)Where possible or necessary, the reasons in the brief shall also be supported by particulars of the titles, dates and pages of cases reported in the Law Reports or elsewhere including the summary of the decisions in such cases, which the parties propose to rely upon. Where it is necessary, reference shall also be made to relevant statutory instruments, law books, and other legal journals.
(3)The parties shall assume that briefs will be read and considered in conjunction with the documents admitted in evidence as exhibits during the proceedings in the Court below, and wherever necessary, reference shall also be made to all relevant documents or exhibits on which they propose to rely in argument.
(4)All briefs shall be concluded with a numbered summary of the points to raise and the reasons upon which the argument is founded.
The duty of the respondents in brief writing is provided in Order 19 Rule 4(1)-(2) of the Court of Appeal Rules, 2016:-
4(1)The respondent shall also within thirty days of the service of the brief for the appellant on him file the respondent’s brief which shall be duly endorsed with an address or addresses for service.
(2)The respondent’s brief shall answer all material points of substance contained in the appellant’s brief and contain all points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall mutatis mutandis; also conform to Rule 3 (1), (2), (3), (4) and (5) of this Order.
I am of the humble opinion that it is the appellants who are aggrieved with the determination of the dispute by Igoh, J., that filed a Notice of Appeal and distilled issues for consideration by the Court of Appeal which I shall consider. I shall examine the validity of the issues whether they have arisen from the grounds of appeal and whether the grounds of appeal are permitted in law.
The 1st – 2nd and 5th – 6th respondents did not cross-appeal hence their responsibility is to answer all the points of substance raised by the appellant in his brief of argument showing why the appeal ought to be dismissed. That is the purport of Order 19 Rule 4(1)-(2) of the Court of Appeal Rules, 2016 which provides as follows:-
4(1)The respondent shall also within thirty days of the service of the brief for the appellant on him file the respondent’s brief which shall be duly endorsed with an address or addresses for service.
(2)The respondent’s brief shall answer all material points of substance contained in the appellant’s brief and contain all points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall mutatis mutandis; also conform to Rule 3 (1), (2), (3), (4) and (5) of this Order.
The 1st – 2nd and 5th – 6th respondents filed a Joint brief of argument on 15th May, 2015 wherein the following lone issue was distilled for determination at page 4 of the brief:-
Whether the lower Court was right to have raised the issue of whether Edumoga is still a District under the law of Benue State or under custom to warrant the appointment of a District Head that was the subject matter of the case before the Court suo motu and thereafter proceeded to answer the same without affording the parties opportunity to address the Court on the issue so raised before dismissing the appellant’s suit upon the said issue
I shall confine this appeal to the issues formulated by Chief Peter Idoko who has appealed against the decision of Igoh, J.
The onus is on the appellant to convince this Court that the learned trial Judge committed substantial wrongs in the course of adjudication, or that the decision has occasioned a miscarriage of justice, to warrant this Court to interfere with the findings or verdict in favour of the appellant. But even then, the remedy will lie in the provisions of Order 4 Rule 9(3) of the Court of Appeal Rules, 2016 to wit:-
9(3)A new trial may be ordered on any question without interfering with the finding or decision on any other question; and if it appears to the Court that any such wrong or miscarriage of justice as is mentioned in sub-rule (2) of this Rule affects part only of the matter in controversy or one or some only of the parties, the Court may order a new trial as to the party only, or as to that party or those parties only, and give final judgment as to the remainder.
This Court will apply the ‘Blue Pencil Rule’ or the ‘Blue Pencil Test’ and excise the aspects of the decision of the learned trial Judge that was substantially wrong or that has occasioned a miscarriage of justice and may give final judgment’ to the remainder of parties based on admissible evidence and exhibits in the record of appeal in favour of any of the parties that is entitled to justice under Order 4 Rule 9(3) of the Rules (supra).
A ‘final judgment’ is defined in Black’s Law Dictionary, 9th edition, page 919 as: A Court’s last action that settles the rights of the parties and disposes of all issues in controversy, except for the award of costs (and sometimes, attorney’s fees) and enforcement of the judgment. See Ebokam vs. Ekwenibe (1999) 7 SC (Pt.1) 77.
In Obasi Bros. Co. Ltd. vs. Merchant Bank of West Africa Securities Ltd. (2005) 2 SCNJ 272, Pats-Acholonu, JSC held at pages 278-279 as follows:
‘A final judgment is one which decides the rights of parties. In other words it is a decision on the merits of the case where the matter is assiduously canvassed and the rendition of a judgment is based on what is canvassed and agitated before the Courts by the legal combatants. The question to resolve here is whether such is the position in the earlier Suit No.LD/3356/1992 hitherto filed in the High Court by the respondent. Therefore for the doctrine of estoppel per rem judicatam to operate as estoppel, in all its ramifications, it is important that the case between the parties presently in Court had been adjudicated between them before on its merit and the Court had reached and delivered a final judgment. The doctrine does not operate in an inchoate matter, id est, it rests on a priori conception that the rights agitated and assiduously canvassed by the parties on the issue in controversy had earlier been determined. It is erroneous to construe a mere striking out of a case on the basis that because the proponent of the action had become lethargic or nonchalant to prosecute a case and the Court relying on its inherent powers to strike out the case, it amount to dismissal on the merit. See Rakin Udo & Ors vs. Mbiam Obot and Ors. (1989) 1 NWLR (Pt.95) at p.59 at 72.
The learned Counsel for the appellant has tended to make a heavy weather in the case of Eronini vs. Iheuko (1989) 2 NWLR (Pt.101) 46. An analytical and forensic comparison with that case shows distinctive characteristics easily distinguishable. In the present case the respondent in this matter in its Suit No.LD/3359/1992 did nothing whatsoever to proceed with the action it initiated. In such a situation the Court using its inherent powers struck out the case after the initiator of the action seriously manifested or evinced an intention not to continue or follow up, pursue or persevere with the case. The respondent would be presumed to have developed cold feet. The Court seised with such proceedings would not ordinarily allow the case for which no further interest appeared to have been shown by the initiator of the action to stay in the Court list. It therefore used its untrammeled judicial powers which inhere in it to strike out the case.
In the case of Leonard Eronini & Ors. vs. Francis Iheuko (supra), the plaintiff who later was the respondent had initiated an action against the appellant. When he started to give evidence, his testimony markedly contradicted the facts averred in his pleading. There was such a confusion in the presentation of the case that the plaintiff’s Counsel decided to discontinue with the case and asked that the case be struck out. The defence Counsel in that case wanted outright dismissal. Of course in the Supreme Court, this Court held that the right decision the Court below should have made was to dismiss the case. It was obvious that the case of the plaintiffs (respondent) in that matter was in tatters as it had no remedying factor. In other words he fired his last salvo. His case was found to be completely bereft of any substance being completely empty of any remedying feature. In the present case, nothing had been done at all. When a party who filed an action in the Court commences giving evidence which is in conflict with the facts pleaded and raises such confusion that it becomes difficult to determine whether the plaintiff knows the facts of his case, and at a stage he asks the Court to strike out the case, the Court should dismiss it because there is nothing more to urge on the Court as the case sought to be put forward is visionless and worthless. This is not the case here where the original plaintiff abandoned its case. It is not even in all cases where a matter is dismissed that it completely terminates the case. Indeed, where a case is said to have been dismissed in the High Court but the circumstances show that such dismissal could not possibly connote or denote the determination ‘as to put a finality to the case the Court views such dismissal as a mere striking out. See, for example, Order 30 Rules 3 and 4 of the Lagos 2004 High Court Rules. It is my view that the determination of the suit hitherto instituted by the respondent was definitely not on merit.’
The ‘Blue Pencil Rule’ or ‘Blue Pencil Test’ has been applied by the Supreme Court in Ezekpelechi vs. Ugoji (1991) 7 SCN (Pt.2) 244 per Babalakin, JSC at page 258 lines 1-14 as follows:-
?Having found that the plaintiffs pleaded estoppel and the learned trial Judge made use of the judgment as such the summing-up of issues settled which stated same to be res judicata becomes a mere wrong use of words which is a technicality that should not be allowed to becloud the justice of this case so ably x-rayed by the trial Court and the Court of Appeal. This Court has often constantly emphasized that mere technicalities should not be allowed to defeat the justice of a case. In fact a Court should adjudicate on issues properly submitted by the party and not on matter raised by the parties. See the case of Atoyebi vs. Odudu (1990) 6 NWLR (Pt.157) 384.
Finally on this point it is not every slip in the lower Court that will result in an appeal being allowed. The misconception of the Counsel for the plaintiffs-respondents that a plaintiff can plead res judicata in a statement of claim is not supported by law.’
In Onifade vs. Olayiwola (1990) 11 SCNJ 16 the Supreme Court held at page 22 lines 10 to page 23 lines 1-43 per Nnaemeka-Agu, JSC as follows:- ‘Failure of an appellant to formulate issues in his brief is a non-compliance with the rules and may result in the brief being struck out.’
The reason for this is not far to seek. For, quite apart from the fact that it is a requirement of the rules, and it is settled that rules of Court ought to be obeyed, it is an omission which affects the merit of the appeal. Appeals in this Court are now argued on the issues and not on the grounds of appeal. An issue is a combination of facts and circumstances, including the law on a particular point, which when decided one way or the other affects the fate of the appeal. A ground of appeal, on the other hand, is any wrong decision, resolution, inference or step taken by the Court below which, in the contention of the appellant, is wrong. Any error on the facts or in law may properly be raised as a ground. One or more grounds may form an issue; but it is not every ground that is sufficient to raise an issue. To take a common example: wrongful rejection of an admissible piece of evidence is a valid ground of appeal. But to merely show that a piece of evidence was wrongly rejected cannot be a ground for allowing the appeal. The proper issue that could be raised thereon is whether if the particular piece of evidence was wrongly rejected, it would have, if admitted, affected the decision. It is now too late in the day to dispute the fact that it is not every ground of appeal that has been successfully argued that will necessarily result in the appeal being allowed. Even under the old practice, where a number of grounds were argued and some were successfully attacked but some were not, it did not necessarily follow that because of those successful grounds the appeal must be allowed.
The Court, in order to decide whether the appeal succeeds would, as it were, run a blue pencil across the grounds successfully attacked and see whether the remaining grounds could sustain the decision appealed against. If they could, the appeal failed; but if they could not, the appeal succeeded. This is the so-called ‘blue pencil’ rule. See Ex parte Whybrow & Co. & Ors. (1910-1911) 11 CLR 1 at pp.34-35. Applying this rule in Sir Abubakar Tafawa Balewa vs. Chief T. Adebayo Doherty (1963) 1 NWLR 949, Lord Devlin in the Privy Council stated at page 960:-
‘In their Lordships’ opinion the definition cannot be read down. There is no special provision in the Constitution giving to the Court any power of interpretation greater than that which flows from the ordinary rule of construction. The question, therefore, is whether the good can be severed from the bad and so survive. Clearly it cannot here be done under the ‘blue pencil’ rule.’
In the new practice since the introduction of brief writing, the same principle of practice has been applied in appeals. A ground of appeal or a point in the appeal may succeed, but if it is not shown to have been substantial or material in the sense that it has occasioned a miscarriage of justice, the appeal will still be dismissed. In the case of His Highness Oba Lamidi Olayiwola Adeyemi & Ors. vs. The Attorney-General of Oyo State & Ors. (1984) 1 SCNLR 525 although the Supreme Court held that the Court of Appeal, Ibadan Division, was in error when it when it held that the Boundary Commissioner appointed under the Local Government and Community Boundaries Settlement Law is a subordinate Court vested with judicial powers, it still dismissed the appeal when it came to the conclusion that, as an administrative tribunal, the Commissioner had power to enquire into and determine such boundaries as he might be required by the Governor to do. Despite the unwarranted excursion of the Commissioner into the issue of declaration of title, their Lordships still dismissed the appeal. It appears to me therefore to be the law that where an appellant is able to show just that the Court below committed an error without showing that the error is substantial or material in that it has affected the merits of the case one way or the other, the appeal may still be dismissed. See on this Onojobi vs. Olanipekun (1985) 4 SC (Pt.2) 156, at page 163 (per Obaseki, JSC).
In Adejumo vs. Ayantegbe (1989) 3 NWLR 417 at p.430, dealing with a problem similar to the one that has arisen in this case, I said, and my learned brothers agreed with me:-
‘But he should know that once the issues for determination have taken full account of the grounds of appeal filed, he ought not to abandon those issues and base his arguments on the grounds of appeal one by one. Quite apart from the intendment of the Rules that argument in a brief shall be based on the issues, the advantage of this is that whereas a successful argument of a ground of appeal does not necessarily result in the appeal being allowed (for which see Balewa vs. Doherty (1963) 1 WLR 949, at p.960; H.H. Oba Lamidi Olayiwola Adeyemi & Ors. vs. The Attorney-General of Oyo State & Ors. (1984) 1 SCNLR 525, at pp.575 and 605 a resolution of an issue, properly framed, will affect the fortunes of the appeal one way or the other. For an issue, which is usually raised by one or more grounds of appeal, is a question, usually a proposition of law or of fact in dispute between the parties, necessary for determination by the Court, and a determination of which will normally affect the result of the appeal. See Standard Consolidated Dredging and Construction Co. Ltd. vs. Katonecrest Nigeria Ltd. (1986) 5 NWLR (Pt.44) 791, at p.799; Ejowhomu vs. Edok-Eter Mandilas Ltd. (1986) 5 NWLR (Pt.39) 1; Chukwuma Okwudili Ugo vs. Amamchukwu Obiekwe & Anor. (1989) 2 SCNJ 95 a pp.103-104; (1989) 1 NWLR (Pt.99) 566.’
In this case, the appellant not only failed to frame any issues, but also he failed to show that his alleged grounds are material or substantial. Besides, it is my view that the decision as to whether or not any relevant grounds of appeal are material or substantial is one which an appellate Court cannot avoid to take before it can intervene. See on this Moulton vs. Graham 22 T.L.R. 380 at page 384. When in this appeal, the appellant failed to allege or show that those unspecified grounds which he complains that the Court of Appeal failed to consider are substantial or material, he is not entitled to any intervention by this Court.
The appellant’s appeal is also doomed to failure for two other reasons.
In Ugo vs. Obiekwe (1989) 2 SCNJ 95, Nnaemeka-Agu, JSC held at page 103 lines 15 to page 104 lines 1-34 as follows:-
‘First:- Issues for determination numbers (1), (3), (4) and (6) are based on no grounds of appeal at all or upon grounds 4 and 5 which had already been struck out. This should not be. Counsel will do well to remember that issues for determination must arise from and relate to the grounds of appeal filed, and no more. Conversely and issue for determination which has no ground of appeal to support it is worse than useless: See on this Osinupebi vs. Saibu & Ors. (1982) 7 SC 104 at pp.110-111; also Western Steel Works Limited & Anor. vs. Iron & Steel Workers Union of Nigeria (1987) 1 NWLR (Pt.49) 284 at page 304.
Secondly:- Counsel did not hold himself much by the arrangement he adopted for his statement of issues. A good deal of useful time was wasted during argument when, pressed by the Court, he had to relate his arguments on the various grounds of appeal to the stated issues but have no relationship with the grounds either in form, arrangement or numbering and arrangement whereby statement of facts, issues and argument are easily referable to the grounds of appeal filed.
Thirdly:- Counsel appeared to have worked on the misapprehension that every possible slip raises an issue. The result is that he framed too many issues ? nine, for six grounds of appeal. This appears to be a reversal of the usual practice whereby one or two or more grounds raise an issue: one ground can never properly raise more than one issue. It must, however, be borne in mind that an ?issue? in an appeal must be a proposition of law or fact so cogent, weighty and compelling that a decision on it in favour of a party to the appeal will entitled him to the judgment of the Court. This is why apart from the fact that multiplicity of issues tends to reduce most of them to trifles, experience shows that most appeals are won on a few cogent and substantial issues, well framed, researched and presented rather than on numerous trifling slips.
I may here repeat what I said in the case of Standard Consolidated Dredging & Construction Company Limited vs. Katoncrest Nigeria Limited (1986) 5 NWLR (Pt.44) 791 at page 799 where I said:-
‘The above manner of wording the issues for determination in both briefs raises two necessary questions, namely:- (I) what is the meaning of ‘issues arising for determination’ in a brief and (II) what are its objects and purpose. As for the meaning of ‘issue’ I cannot do better than borrow the words of Buckley, L.J., in Howell vs. Daring & Ors. (1915) 1 K.B. 54, at page 62 thus:
‘The word can be used in more than one sense. It may be said that every disputed question of fact is in issue. It is in a sense, that is to say, it is in dispute. But every question of fact which is ?in issue? and which a jury has to decide is not necessarily ‘an issue’ within the meaning of the rule’.
Later he continued:
‘An issue is that which, if decided in favour of the plaintiff, will in itself give a right to relief, or would, but for some other consideration, in itself give a right to relief; and if decided in favour of the defendant will in itself be a defence.’
So it is on an appellate brief, mutatis mutandis. It is not every fact in dispute or indeed every ground of appeal that raises an issue for determination. While sometimes one such fact or ground may raise an issue, more often than not it takes a combination of such facts or grounds to raise an issue. The acid test is whether the legal consequences of that ground or facts as framed by the appellant, if decided in favour of the appellant, will result in a verdict in his favour. For as Lord Diplock put it in Fidelitas Shipping Co. Ltd. vs. V/O Exportchleb (1966) 1 Q.B. 631 at page 642:-
‘But while an issue may thus involve a dispute about facts, a mere dispute about facts divorced from their legal consequences is not ‘an issue.’
The issues, as framed, appeared to have served no purpose whatsoever in the appeal. For after framing the nine issues, Counsel went back to argue his grounds of appeal one after another. He made no further reference to the issues framed, in his argument. The proper practice is, of course, that after framing the issues, the statement of facts and the argument to follow should be based on, and be referable to the issues as framed and not to the grounds of appeal. This is the only way whereby Counsel can derive maximum benefit from his brief.
See Adejumo vs. Ayantegbe (1989) 3 NWLR 417 at 430 and Onojobi vs. Olanipekun (1985) 4 SC (Pt.2) 156 at 163.
The contest is not whether a learned trial Judge raised an issue or issues suo motu and decided the dispute. The current trend in judicial firmament, circle or thinking is whether the decision was substantially wrong or there has been occasioned a miscarriage of justice as provided in Order 4 Rule 9(1)-(2) of the Court of Appeal Rules, 2016 which cannot be remedied by the provisions of Order 4 Rule 9(3) of the Court of Appeal Rules, 2016. In Ogembe vs. Usman (2011) 17 NWLR (Pt.1277) 638, Galadima, JSC held at page 656 paragraphs ?E?-?F? as follows:-
‘Because of its importance, a point of jurisdiction can be raised at any time and even viva voce for the first time during argument. The Court can suo motu raise it.
In Effiom vs. C.R.S.I.E.C. (2010) 14 NWLR (Pt.1213) 106 appears the following passage at pages 133-134:-
On the issue of whether it was proper for the Court below to raise the issue of locus standi of the appellants suo motu and determine same without hearing from the parties, it has long been settled that no Court is entitled to do so. The elementary principle is that it is wrong for a Court to raise any issue of fact suo motu and decide upon it, without giving the parties an opportunity to be heard on it.
This is so because the Court is bound by and therefore confined to the issues raised by the parties. Where however the Court raises an issue suo motu which it considers material for the proper determination of the case, it must give parties, particularly the party likely to be adversely affected by the issue, to be heard. See Ajuwon vs. Akanni (1993) 9 NWLR (Pt.316) 182 at 190; Ajao vs. Ashiru (1973) 11 SC 23 at 39-40; Atanda vs. Akanmi (1974) 3 SC 109; Kuti vs. Jibowu (1972) 1 All NLR (Pt.II) 180; R.T.E.A.N. vs. N.U.R.T.W. (1992) 2 NWLR (Pt.224) 381; Finnih vs. Imade (1992) 1 NWLR (Pt.219) 511 AT 537.
While the Court has a duty to give the parties the opportunity to be heard on any issue it raises suo motu a failure to do so does not necessarily lead to a reversal of its decision. To warrant an appellate Court’s reversal of the decision, the appellant must go further to show that the failure to hear him on the point occasioned some miscarriage of justice. See Imah vs. Okogbe (1993) 9 NWLR (Pt.316) 159 at 178; Olubode vs. Salami (1985) 2 NWLR (Pt.7) 282.
As I indicated above this principle that the Court ought not to raise an issue suo motu and decide upon it without hearing from the parties applies mainly to issues of fact. In some special circumstances, the Court can raise an issue of law or jurisdiction suo motu and without hearing the parties decide upon it. Tukur vs. Government of Gongola State (1989) 4 NWLR (Pt.117) 517 is instructive on this point. In that case although the issue of venue was not raised and argued by the parties in their briefs, it being an issue of jurisdiction was taken by the Court.
In the instant case therefore, the Court below would be at liberty to raise the issue of locus standi of the appellants if such an issue was relevant to the proper determination of case. It is to be noted however that the issue of the locus standi of the plaintiffs/appellants was raised at the trial Court and effectively determined therein in favour of the appellants. The respondent did not appeal against it and so it was not an issue before the Court below. It was irrelevant and so the Court’s deliberation on it was an exercise in futility. It is not surprising therefore that the appellants have not shown in any way that they suffered any miscarriage of justice by the lower Court’s deliberation on the issue of their locus standi. Accordingly this issue is also resolved against the appellants.
A learned trial Judge or an appellate Justice ought not to close his eyes or shut his mind and pretend that something does not exist in the record of trial or record of appeal which indeed exists, which ought to be put right if not, there may be a miscarriage of justice against any of the parties in litigation or on appeal. In Chandler vs. DPP (1964) A.C. 763 at 789, Lord Reid is said to have held that: No judge can be expected to treat something which is before his eyes as though it was not there. The dictum was cited with approval by Idigbe, JSC in Uwaifo vs. Attorney-General of Bendel State (1982) 7 SC 124 at pages 187-188. In Emegwara vs. Nwaimo (1954) 14 WACA 347 at 349, Verity, C.J., held that: ‘There is one point to which no argument was addressed and which was not made the subject of appeal but in regard to which in my opinion the learned Judge erred in form if not in substance In Ogunro & Ors. vs. Ogedengbe & Anor. (1960) 5 FSC 137, Hubbard, Ag. F.J., held at page 140 that: ‘There is one other point, not raised on this appeal, which I think should be dealt with In Tukur vs. Governor of Gongola State (1989) 4 NWLR (Pt.117) 517, Oputa, JSC held at page 557 paragraph ‘C’ that: The issue of venue was not taken up and argued in the parties? briefs but being an issue of jurisdiction, the Court can take it up itself at any stage.
In Bayero vs. Mainasara (2007) All FWLR (Pt.359) 1285 at 1314 paragraphs ‘D’-‘G’ the Court held to wit:
‘Furthermore, the Court cannot by the order it made on the 18th day of May, 1999 validate the act of the registrar which was invalid. The registrar certainly had no competence to do what he did without a Court order so to do. And even where neither party had seen or raised the issue of competence of Court on the invalid writ of summons, the Court itself with respect, ought to have seen it and then put a stop to the proceedings. It is settled that a Court is bound to put an end to the consideration of a matter at any stage of the proceedings when it becomes obviously that it is incompetent to entertain the action. See: Attorney-General, Anambra State vs. Okeke (2002) FWLR (Pt.112) 175, (2002) 12 NWLR (Pt.782) 575 at 618-619.
In Westminster Bank Limited vs. Edwards (1942) A.C. 529 at 533, Viscount Simon L.C. said:
‘Moreover, the question was not in issue. There are of course cases in which a Court should itself take objection on its own, even though the point is not raised by any of the parties to it.’
In the same case, Lord Wright at page 536 had said:
‘Now it is clear that a Court is not entitled but bound to put an end to proceedings if at any stage and by any means it becomes manifest that they are incompetent. It can do so if its own initiative, even though the parties have consented to the irregularity.’
The Court of Appeal Rules, 2016 came into effect on 1st day of December, 2016. The Rules provides in Order 1 Rules 1-4 as follows: –
1. These Rules may be cited as the Court of Appeal Rules, 2016 and shall come into force on the 1st day of December, 2016.
2.The Court of Appeal Rules, 2011 is hereby repealed.
3.The practice and procedure of the Court shall be as prescribed by these Rules notwithstanding any written law or rule of practice to the contrary obtaining in any of the States.
4.The forms set out in the First and Second Schedules to these Rules, or forms as near thereto as circumstances permit, shall be used in all cases to which such forms are applicable.
Proceedings in the Court of Appeal are to be heard and determined according to the wordings and intention of the President of the Court of Appeal who made the Rules under the provisions of Section 248 of the Constitution of the Federal Republic of Nigeria, 1999 as altered with effect from 29th May, 1999 to wit:-
248. Subject to the provisions of any Act of the National Assembly, the President of the Court of Appeal may make rules for regulating the practice and procedure of the Court of Appeal.
In Finnih vs. Imade (1992) 1 SCNJ 87, Babalakin, JSC held at pages 102-103 as follows:-
‘The Court of Appeal in its judgment alluded to the provisions of the Boundary Dispute (Determination) Notice No.N.S.L.N. 72 of 1974 later re-enacted as Edict No.6 of 1977 Section 2(1) of which provides as follows:
(m) In the interest of peace and order, all allotment of plots erroneously made by the plot Allotment Committees for Wards 18H, 17H, and A1 before the date of commencement of this Edict and which have received the approval of his Highness, the Oba of Benin shall be deemed to have been validly made to those concerned.’
This is inter alia to show that the plaintiff/respondent was not throwing away his money when he re-bought the land in dispute for N2,400.00k from one Omoruyi who claimed the land and asserted that he derived his title from the Oba of Benin through Ward ‘A’ because at one time the plot Allotment Committee Ward ‘A’ asserted their right over the area where the land in dispute is situated. The other purpose of the Edict was to clear once and for all the confusion that has arisen about grants relating to Ward ‘A’ and Ward ’17’.
The Court of Appeal referred to this edict after making a finding of fact that the plaintiff/respondent was in actual possession of the land in dispute at the material time of trespass complained of and was not a trespasser.
By this reference it cannot be construed to mean that the Court of Appeal was setting up for the plaintiff/respondent a case he did not make as submitted by Counsel for the defendant/appellant. It must be understood that the Court of Appeal is entitled to take judicial notice of this edict by virtue of Section 73 of the Evidence Act, and there was no need for Court of Appeal to call on both Counsel to address it before doing so. The answer to issue No.4 formulated by the defendant/appellant is YES.
Section 73(1)(a) of Evidence Act provides:
73(1)The Court shall take judicial notice of the following facts:
(a)All laws or enactments and any subsidiary legislation made thereunder having the force of law now or heretofore in force, or hereafter to be in force, in any part of Nigeria’
Decisions not founded on the provisions of the Court of Appeal Rules, 2016 ought not to be used to scuttle the intention of the President of the Court of Appeal who made the Rules.
In Letang vs. Cooper cited in A Case Book On Tort, 3rd edition by Tony Weir 264, Lord Denning, M.R., held at pages 265 to 266 as follows:
I must decline, therefore, to go back to the old forms of action in order to construe this statute. I know that in the last century Maitland said ‘the forms of action we have buried, but they still rule us from their graves’ (see Maitland, Forms of Action (1909), p.296), but we have in this century shaken off their trammels. These forms of action have served their day. They did at one time form a guide to substantive rights; but they do so no longer. Lord Atkin, in United Australia Ltd. vs. Barclays Bank Ltd. ([1941] A.C. 1, 29), told us what to do about them: ?When these ghosts of the past stand in the path of justice clanking their medieval chains the proper course for the Judge is to pass through them undeterred’
Again in Odu vs. The State (1965) NMLR 129, Brett, JSC held at page 131 last paragraph as follows:
‘With respect, we think that the most profitable approach to the interpretation of the Criminal Code is to begin by examining the words of the Code itself, and that decisions on the common law are only of value where the wording of the Code is obscure or capable of bearing more than one meaning, when they may be referred to for the purpose of ascertaining the sense in which words are used in the Code
In Nwobodo vs. Onoh (1984) NSCC 1 Bello, JSC (as he was) expressed the following opinion considering new or amended legislations at page 14 to wit:
‘I think I may end this part of my judgment with this observation. In the application of the provisions of a statute to a particular case, a Court should not blindly adhere to the ratio decidendi of a previous case founded on the interpretation of a former statute without having first carefully examined that statute and meticulously compared it with the statute governing the case for determination by the Court in order to ascertain whether the two statutes are in pari materia. It is only when the two statutes are similar and identical that the interpretation placed on one can be a precedent to the interpretation of the other.’
Igoh, J., had to construe the relevant provisions of the legislation that governs the creation of Clans and Districts in Benue State but found that there is no Edumoga District. The onus was on the appellant to produce the legislation that created Edumoga District in Benue and when as an exhibit or to have called on the learned trial Judge to take judicial notice of the legislation to use in determining the questions for construction or interpretation but the appellant did not.
If the Law or the Constitution has been altered, changed or repealed, etc, that will depict the intention of the National or the State Assembly. In Jurisprudence, 4th edition by R.W.M. Dias, pages 196 to 197 appears the following passage: –
‘Although a case has neither been reserved nor overruled, it may cease to be ‘law’ owing to changed conditions and changed law: Cessant ratiore cessat ipsa lex- Where a case, which is acknowledged to have been law at the time, has ceased to have that character owing to altered circumstance. It is the latter that is under consideration. If, of course, the law-making functions of Courts is admitted, then it would be easy to reject out-of-date precedents openly on the threadbare fiction that cases only reflect what always has been law.
Willes, C.J. once said, ?When the nature of things changes, the rules of law must change too.? This is a truism in that the legislature and within limits, the Courts should change rules to keep the law abreast of change. The question under review is whether changed conditions may deprive a case of its law-quality
R.W.M. Dias again wrote in Jurisprudence, 4th edition at page 162 is that:
‘The third major task of justice mentioned at the start of this book, and the one which lies especially within the province of lawyers, is that of doing justice in deciding disputes. In Aristotelian terms this is part of the process of corrective justice’.
A study of the decisional process has to be conducted with reference to the technical equipment that is used; and it will be convenient to begin with precedent.
Reliance on judicial precedent is widely employed in law. it signifies broadly the use of past decisions as guides in giving other decisions, and in this sense is in no way peculiar to common law systems. The special characteristic of common law lies in treating precedents in certain circumstances as possessing law-quality in themselves and also binding, which means that they have to be followed or else distinguished. Quotability as ‘law’ applies to the principle of a case, its ratio decidendi, as was stated by Jessel, M.R.: ‘The only thing in a Judge’s decision binding as an authority upon a subsequent Judge is the principle upon which the case was decided. Bindingness, on the other hand, depends on the hierarchy of Courts, for generally higher Courts bind lower Courts, but never vice versa. The two aspects are independent. A decision of the High Court, for example, is ‘law’ although it is not binding on any Court other than those inferior to itself. A convenient nomenclature for the common law doctrine is stare decisis, derived from stare decisis et non quieta movere, which serves to distinguish it from the broad doctrine of precedent common to all developed systems.’
In Adigun & Ors. vs. Attorney-General, Oyo State (1987) LPELR-4648 SC where Kayode Eso, JSC said:
‘The decision of the Supreme Court is final. Final in the sense of real finality in so far as the particular case before that Court is concerned. It is final forever, except there is legislation to the contrary, and it has to be legislation ad hominem. The Supreme Court, and it is only the Supreme Court, may depart from the principles laid down in their decision in the case in future cases but that does not alter the rights, privileges or detriment to the parties concerned arising from the original case. Such is the constitutional power of the Supreme Court, that learned Counsel, probably rightly, wondered if Justices of the Supreme Court were supermen. Let me answer the question. The Supreme Court is, under the Constitution, a super Court, deliberately meant and made to be so, by the organic law, and the Justices of that Court, now only to that extent of their decision are super men, meant to be so and so made by the Constitution. Of course, neither the Court nor the Justices are meant to, or could even be infallible. But the price paid for finality in litigation is that the notion or the dread of infallibility has been sacrificed by the Constitution on the alter of finality. The society can never be stable if there is no such finality in litigation.’
In Miliangos vs. George Frank (iles) Ltd. (1975) All E.R. 801, Lord Wilberforce reviewed the previous authorities of the House of Lords and the Court of Appeal holding at page 812 as follows:
‘This brings me to the declaration made by this House in 1966. Under it, the House affirmed its power to depart from a previous decision when it appeared right to do so, recognizing that too rigid adherence to precedent might lead to injustice in a particular case and unduly restrict the proper development of the law. My Lord, on the assumption that to depart from the Havanna Railway’s case would not involve undue practical difficulties, that a new and more satisfactory rule is capable of being stated, I am of opinion that the present case falls within the terms of the declaration. To change the rule would, for the reasons already explained, avoid injustice in the present case. To change it would enable the law to keep in step with commercial needs and with the majority of other countries facing similar problem.’
Lord Simon of Glaisdale also held at page 838 as follows:
‘I ask myself, therefore, whether there has been any change of circumstances since 1961 sufficiently great to justify us in saying that the rule which in the Havana case was accepted on all sides without question and which formed an essential foundation for the judgments delivered ought now to be considered to be no longer an existing rule of our law. I agree with my noble and learned friend, Lord Wilberforce, that the change which has come over the ‘foreign exchange’ situation generally and the position of sterling in particular in the course of last 15 years justifies us in answering that question in the affirmative. In this connection I am particularly impressed by the fact that awards in commercial arbitrations are now often made in a foreign currency and that the Court of Appeal has held in the Jugoslavenka case that such awards can be enforced as judgment under Section 26 of the Arbitration Act, 1950.
It would be most unfortunate for this House to cast any doubt on the correctness of the decision; but as Lord Wilberforce points out, it would be absurd to have one rule with regard to arbitrations on debts expressed in a foreign currency and another with regard to actions brought on similar debts. Like him, however, I would go no further on this occasion than to say that the Court has power to give judgment for payment of money in a foreign currency and that one case in which such a judgment should be given is where the action is brought to enforce a foreign money obligation. In that case if the defendant fails to deliver the foreign currency the date for its conversion into sterling should be the date when the plaintiff is given leave to levy execution for a sum expressed in sterling. I say nothing one way or the other as to the date for conversion into sterling of sums ascertained in foreign currency for damages for breach of contract or tort. Further, I agree with Lord Wilberforce that where the foreign money obligation is the subject of a proof in bankruptcy or liquidation the date for conversion into sterling should be the date of the admission of the proof. I also agree with all he said as to the views expressed by the Court of Appeal in the Schorsch Meier case with regard to Act 106 of the EEC Treaty.
Lord Edmund-Davies held at page 841 as follows:
‘I confess myself glad to have arrived at the conclusion that, for the reasons given in the speeches of my noble and learned friends, Lord Wilberforce and Lord Cross of Chelsea, the circumstances of today are so greatly different from those prevailing when the Havana case was decided 15 years ago that this House is now free to depart from it. We can therefore avoid perpetrating the great injustice which would result were the ratio decidendi of that case applied to the present claim. Accordingly, while respectfully finding myself unable to regard as valid the points relied on by Lord Denning, M.R., in the Schorsch Meier case as justifying a departure from the Havana case, I would concur in dismissing this appeal.’
The powers of the Court of Appeal in hearing disputes is provided under Order 4 Rule 9(1)-(2) of the Court of Appeal Rules, 2016 as follows:-
9(1)On the hearing of any appeal, the Court may, if it thinks fit, make any such Order(s) as could be made in pursuance of an application for a new trial or to set aside a verdict or judgment of the Court below.
(2)The Court shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court some substantial wrong or miscarriage of justice has been thereby occasioned.
None of the authorities cited by the appellant in the brief has taken cognizance of the provisions of Order 4 Rules 9(1)-(3) of the Court of Appeal Rules, 2016. It is not just for the appellant to show that the parties were not afforded an opportunity to address the Court before the learned trial Judge arrived at a decision. The learned trial Judge was confronted with an Originating Summons supported with documentary evidence and verified on sworn oaths which the learned trial Judge had to construe and interpret. An affidavit usually contains oral evidence which the deponent swears before an authorized officer of a Court of competent jurisdiction. Sections 115-116 of the Evidence Act, 2011 reads as follows:-
115(1) Every affidavit used in the Court shall contain only a statement of fact and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.
(2)An affidavit shall not contain extraneous matter, by way of objection, prayer or legal argument or conclusion.
(3)When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the grounds of his belief.
(4)When such belief is derived from information received from another person, the name of his informant shall be stated and reasonable particulars shall be given respecting the informant and the time, place and circumstance of the information.
116.When there are before a Court affidavits that are irreconcilably in conflict on crucial facts, the Court shall for the purpose of resolving the conflict arising from the affidavit evidence, ask the parties to proffer oral evidence as to such facts, and shall hear any such oral evidence of the deponent of the affidavits and such other witnesses as may be called by the parties.
A deponent that swears an affidavit is a ‘witness’ in the proceedings. The evidence of deponents in a sworn or counter affidavits, etc, are to be evaluated by the learned trial Judge to arrive at a decision. In Bamaiyi vs. The State (2001) FWLR (Pt.46) 956, Uwaifo, JSC held at page 978 paragraph ?G? to page 979 paragraphs ‘A’-‘B’ and page 981 paragraphs ‘C’-‘F’ that:-
‘I think the two affidavits must now be read as one since the one later in time was sworn in furtherance of the earlier. It must not be forgotten that the deponent, Olakunle Ligali, deposed that by virtue of his schedule of duties, he became conversant with the facts of this case. To be conversant with, is to have knowledge of a matter. Even so, the law requires a deponent of his type to confine himself to facts and circumstances. An affidavit meant for use in Court stands as evidence and must, as near as possible, conform to oral evidence admissible in Court. Sections 86 and 87 of the Evidence Act provides as follows:
86. Every affidavit used in the Court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.
87. An affidavit shall contain extraneous matter, by way of objection, or prayer, or legal argument or conclusion.
These provisions have received the consideration of this court in Governor of Lagos State Vs. Ojukwu (1986) 1 NWLR (pt. 18) 621; Orji Vs. Zaria Industries Ltd. (1992) 1 NWLR (pt. 216) 124; and more recently Josien Holdings Ltd. Vs. Lornamead Ltd. (1995) 1 NWLR (pt. 371) 254′
I think the legal position is clear that in any affidavit used in the Court, the law requires, as provided in Sections 86 and 87 of the Evidence Act, that it shall contain only a statement of facts and circumstances derived from the personal knowledge of the deponent or from information which he believes to be true, and shall not contain extraneous matter by way of objection, or prayer, or legal argument or conclusion. The problem is sometimes how to discern any particular extraneous matter. The test for doing this, in my view, is to examine each of the paragraphs deposed to in the affidavit to ascertain whether it is fit only as a submission which Counsel ought to urge upon the Court. if it is, then it is likely to be either an objection or legal argument which ought to be pressed in oral argument; or it may be conclusion upon an issue which ought to be left to the discretion of the Court either to make a finding or to reach a decision upon through its processes of reasoning. But if it is in the form of evidence which a witness may be entitled to place before the Court in his testimony on oath and is legally receivable to prove or disprove some fact in dispute, then it qualifies as a statement of facts and circumstances which may be deposed to in an affidavit. It therefore means that the prayers, objections and legal arguments are matters that may be pressed by Counsel in Court and are not fit for a witness either in oral testimony or in affidavit evidence; while conclusions should not be drawn by witnesses but left for the Court to reach.
In Ekwuno vs. Ifejika (1960) 5 FSC 156 Hubbard, Ag. F.J., also showed when to grant or refuse declaratory reliefs to claimants at pages 157 to 158 to wit:
The seventeen appellants appeal against a judgment of the High Court of the Eastern Region sitting at Onitsha, by which the two respondents were granted a declaration of title to a piece of land at Onitsha. In the action the two respondents had claimed also damages for trespass, an injunction, and an order for recovery of possession. The declaration was made without the granting of any consequential relief.
The only ground of appeal is that it was improper for the learned Judge to grant a declaration by itself when the respondents’ claims to consequential relief had entirely failed.
The evidence in the action is largely irrelevant on this appeal. The only relevant matters are (1) that none of the seventeen appellants had in fact trespass upon the land, and therefore the respondents were entitled neither to damages, nor to an injunction, nor to an order for recovery of possession; and (2) that by their pleadings the appellants denied the respondents’ averment that they are ‘Owners in possession of the land in dispute from time immemorial’ and alleged that the Obosi people, to which community they, the appellants, belong, are the owners.
Mr. Gratiaen, who appeared for the appellants, cited Earl of Dysart vs. Hammerton & Co. (1914, 1 Ch. 822 C.A.) in support of his ground of appeal.
Mr. Ikpeazu, on behalf of the respondents, attempted to distinguish the facts of that case from those which arise on this appeal, but, in my view, unsuccessfully. In Dysart’s case the first plaintiff claimed to be the owner, and the second plaintiff claimed to be the lessee of a franchise ferry. The defendants had recently begun carrying passengers across the river some 500 yards away from the plaintiffs’ ferry. The plaintiffs’ cause of action was that the defendants’ ferry was an illegal interference with their franchise ferry. The defendants denied the interference and also challenged the plaintiffs’ title, i.e., denied that their ferry was an ancient franchise ferry. Warrington, J., at first instance held that the plaintiffs had established their title to a franchise ferry, but that there was no illegal interference by the defendants.
He accordingly dismissed the action, but made a declaration that the plaintiffs were entitled to a franchise ferry. On appeal it was held that the defendants’ ferry was an illegal interference and that an injunction ought to be granted, but at the same time it was laid down that if Warrington, J.’s finding that there was no interference had been the correct finding, then no declaration should have been made. This latter proposition was confirmed by the House of Lords (Hammerton vs. Dysart, (1916) A.C. 57), per Lord Haldane, at pages 64, 65. Cozens-Hardy, M.R. in the Court of Appeal, said: ?If, however, Warrington, J.’s view was correct? if? the plaintiffs are held not entitled to any relief against Hammerton, it is really unimportant whether the plaintiffs have or have not an ancient ferry which the defendants have not disturbed. The rule enabling the Court to make a declaratory decree ought not to be applied where a declaration is merely asked as a foundation for substantive relief which fails. The dismissal of the action is not a decision adverse to the plaintiffs’ title to a franchise ferry (pp.833 and 834).
Similarly, on the facts now before this Court it is clear that the dismissal of the plaintiffs’ action claiming a declaration of title is not a decision adverse to the plaintiffs’ title to the land.
In Ewarami vs. ACB Ltd. (1978) 4 SC 99 the Supreme Court held at pages 108-109 as follows:
‘In Hanson vs. Radcliffe U.D.C. – 1922 2 Chancery, p.490 at p.507. Lord Sterndale, MR, had this to say on declaratory judgments:
‘The power of the Court to make a declaration, where it is a question of defining the rights of two parties, is almost unlimited; and I might say only limited by its own discretion. The discretion should, of course, be exercised judicially, but it seems to me that the discretion is very wide.’
Some years before the above decision, Bankes, L.J., when considering the scope of this rule was no less emphatic when he said:-
‘There is, however, one limitation which must always be attached to it, that is to say, the relief claimed must be something it would not be unlawful or unconstitutional or inequitable for the Court to grant or contrary to the accepted principles upon which the Court exercises its jurisdiction. Subject to this limitation I see nothing to fetter the discretion of the Court in exercising a jurisdiction under the rule to grant relief, and having regard to general business convenience and the importance of adapting the machinery of the Courts to the needs of suitors I think the rule should receive as liberal a construction as possible.’
See Guaranty Trust Coy of New York vs. Hannay & Coy 915 2 K.B. p.536 at p.578. See also Ekwuno vs. Ifejika 5 FSC p.156 and Ibeneweka vs. Egbuna 1964 1 WLR p.219.
The order made by the learned Judge, was one, which in our view, he could make having regard to the evidence before him.
In Eguamwense vs. Amaghizemwen (1993-1994) All NLR 193 the Supreme Court held per Karibi-Whyte, JSC observed at pages 202 to 203 as follows:-
‘The issue may be better understood after a summary exposition of the nature of a declaratory relief. It is accepted that the action for declaration is a useful and important procedural method for ascertaining and determination of a point of law or the construction of a document, and for the determination of the validity of orders or decisions of inferior Courts or tribunals. Vine vs. National Dock Labour Board (1957) A.C. 488; Pyx Granite Co. Ltd. vs. Ministry of Housing & Local Government (1960) A.C. 260. Its nature is very much misunderstood. The action for declaration is used in a great variety of circumstances and is usually accompanied by ancillary reliefs. This procedure has been very commonly adopted in cases of disputes as to title to land held under customary law. ? See Fabunmi vs. Agbe (1985) 1 NWLR 299. It is also generally used in disputes as to title to chieftaincy. See Gbokoyi vs. Minister of Chieftaincy Affairs (1965) NMLR 7.
However, where the relevant statute has given exclusive jurisdiction to another tribunal or hierarchy of tribunals, the jurisdiction of the Court to grant a declaration would appear to be ousted. (See Punton vs. Ministry of Pensions & National Insurance (2964) 1 WLR 226).
The power to make binding declaration is discretionary. (See Ibeneweka vs. Egbuna (1964) 1 WLR 219). The Court will refuse to exercise such jurisdiction to determine an academic or hypothetical question.
(See Re Barnato (1949) Ch. 258). Hence where the declaration sought is already a decision of a statutory tribunal, the Court will decline to exercise its discretionary jurisdiction to grant a declaration. (See Argosam Finance Col Ltd. vs. Oxby (1964) 1 All E.R. 791). A declaratory judgment will be granted where the justice of the case demands it – more than any other remedy. (See Bello vs. Eweka (1981) 1 SC 101).
In Akunnia vs. Attorney-General of Anambra State (1977) 1 All NLR 118, Idigbe, JSC held at page 128 as follows:-
‘The end result of an action, whatever its nature and no matter how framed, is that the party who approaches the Court obtains the order he seeks; the order he seeks may be declaratory or executory. It is executory where the order declares the rights of the parties before the Court and then proceeds to enjoin the defendant to act in a certain way. It is declaratory where it merely proclaims the existence of a legal relationship, but contains no specific order to be carried out by, or enforced against, the defendant. In the first class of order (executory) it is necessary to have the assistance of the law enforcement agencies to carry out the order, if the order of the Court is disregarded; there is hardly any need for this in the second class of order (declaratory) (See Zamir on Declaratory Judgment, 1962 edition, page 1).’
In Administrative Law by Wade & Forsyth, 9th edition, page 568 to 569 to wit:
‘Declaratory judgments play a large part in private law and are a particularly valuable remedy for settling disputes before they reach the point where a right is infringed. The essence of a declaratory judgment is that it states the rights or legal position of the parties as they stand, without changing them in any way; though it may be supplemented by other remedies in suitable cases. Typical applications are for finding the meaning of some provision in a will, or whether a statute applies to some particular case, or whether a contract has been properly performed. In administrative law there are additional advantages, as in cases where it is difficult to choose the right remedy or where the ordinary remedy is for some reason unsatisfactory.
The common law, with its insistence on compulsory remedies and its horror of maintenance and procedural abuse, long refused to countenance judgments that were merely declaratory; and so did the Court of Chancery. But they were needed inevitably in proceedings against the Crown, since in that case there was no means of enforcement, so that they were in regular use in connection with petitions of right and on the equity side of the Exchequer. Scots law had the action of declarator, which Lord Brougham attempted to import into England with only small success at first. Acts of 1850 and 1852 empowered the Court of Chancery to make declarations of right, but they were construed as narrowly as possible by a still mistrustful judiciary. Even the Judicature Acts 1873-75 did not implant any such power generally in the remodelled judicial system. It arrived finally only with the rules of Court of 1883. It must therefore be considered a statutory rather than an equitable remedy. The surprising thing is that this form of relief, indispensable in any modern system of law, should be so recent an invention.
The rules of Court of 1883 provided that:
No action or proceedings shall be open to objection, on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether any consequential relief is or could be claimed, or not.
This is still the rule today, and the Courts have grown accustomed to using it very freely. A declaratory judgment by itself merely states some existing legal situation. It requires no one to do anything and to disregard it will not be contempt of Court. By enabling a party to discover what his legal position is, it opens the way to the use of other remedies for giving effect to it, if that should be necessary. But it cannot be used to resolve matters which are not justiciable in the Courts, such as civil servant?s superannuation allowances or claims based upon the European Convention on Human Rights (before it was incorporated) or perhaps (or perhaps not), the proceedings of Royal Commissions.
Chief Peter Idoko’s argument in this appeal has no rational basis in law. The argument in the appellant’s brief has not satisfied this Court that the learned trial Judge was substantially wrong or that his decision led to a miscarriage of justice. The appeal lacks merit and is dismissed. I award no cost against the appellant since the respondents did not cross-appeal.
ONYEKACHI AJA OTISI, J.C.A.: I had the opportunity to read in advance a draft copy of the lead Judgment of my learned Brother, Joseph Tine Tur, JCA, dismissing the appeal. I agree with the conclusion that the appeal is without merit. I will only make few comments in support of this opinion.
The learned trial Judge said, page 191 of the Record of Appeal:
Having dealt with some of the issues raised in the various briefs of parties, it is my view that the real issues left for determination of this suit are:
1. Whether having regard to Exhibits A & B of the plaintiff?s originating summons, the next district head (Ede) of Edumoga can be appointed or selected from outside Okpale clan of Edumoga District.
2. Whether or not originating summons is the proper means of communicating this suit.
Issue two formulated above cuts across the briefs filed by respective defendants. I shall therefore deal with that issue first.
After dealing with the issue on the suitability of commencing the Suit by Originating Summons, the learned trial Judge went on to say, page 193 of the Record of Appeal:
‘From the affidavit evidence before me, the real issue for determination is, with the demise of the holder of office, who is or which clan is the appropriate candidate/clan to the office of District head (Ede) of Edumoga. The real question for my determination is whether Edumoga is a District to which there will be contest to Districtheadship.’
The learned trial Judge then proceeded to consider various relevant laws, commencing from the Idoma Native Authority District Council Instrument 1962 made pursuant to the Native Authority Law Cap 77, Laws of Northern Nigeria, which created 22 District areas for the then Idoma Native Authority, up to the then extant law, the Local Government Law, 2007, and concluded that under the new system of local government administration, there was no District known as Edumoga District. The Appellant’s claim was thereupon dismissed. I agree with the Appellant’s Counsel that the learned trial Judge raised suo motu the issue as to whether Edumoga is a District to which there will be contest to District headship, which issue was not addressed by the parties before the learned trial Judge resolved same against the Appellant. The issue the Appellant has framed for the determination of this appeal is whether the lower Court acted rightly by raising the matter suo motu, proceeding to resolve same without hearing from the parties and dismissing the Appellant’s claim.
There is no doubt that a trial Court has the right to raise an issue suo motu. However it is imperative that the parties must be given the opportunity to address it thereon for two main reasons. Firstly, to avoid a breach of the rule of fair hearing, which is a fundamental constitutional right guaranteed by the 1999 Constitution of the Federal Republic of Nigeria, as amended. The breach of this constitutionally guaranteed right of fair hearing vitiates such proceedings, and renders such proceedings null and void; Araka v. Ejeagwu (2000) LPELR-533(SC); Victino Fixed Odds Ltd v. Ojo & Ors (2010) LPELR-3462(SC). Secondly, Court ought not to be seen to leave its exalted position as impartial arbiter and descend into the arena of conflict by suo motu raising the issue to be determined in the matter and resolving same without hearing from the parties; Egbuchu v. Continental Merchant Bank Plc & Ors (2016) LPELR-40053(SC); Ominiyi v Alabi (2015) LPELR-24399(SC). A decision reached upon a matter that has been raised suo motu by the Court, without hearing from the parties, may be set aside; Akeredolu v. Abraham & Ors (2018) LPELR-44067(SC).
Certain exceptions to the caution against deciding on a matter raised suo motu by the Court without hearing from the parties have been recognized in a number of judicial pronouncements. In Gbagbarigha v. Toruemi & Anor (2012) LPELR-15535(SC), (2013) 6 NWLR (Pt.1350) 289, the Supreme Court, per Rhodes-Vivour, JSC, said, pages 15-16 of the E-Report:
‘When a judge raises an issue on his own motion, or raises an issue not in the contemplation of the parties, or an issue not before the Court, the judge is said to have raised the issue suo motu. The well laid down position of the law is that when an issue is raised suo motu the parties should be heard before a decision is reached on the issue. This is what procedural fairness entails but there is an exception to this procedure. There would be no need to call on counsel to address the Court on an issue raised suo motu by the judge-
1. When the issue relates to the Court’s own jurisdiction;
2. When both parties are not aware or ignored a statute which may have bearing on the case; or
3. When on the face of the Record serious questions of the fairness of the proceedings is evident.
See also: Angadi v. PDP & Ors (2018) LPELR-44375(SC) at pages 30 – 31 of the E-Report; Ominiyi v Alabi (supra).
A Court may raise the foundational and fundamental issue of jurisdiction suo motu. Jurisdiction is always a threshold issue. If a Court has no jurisdiction to entertain a suit, no matter how well conducted the proceedings, its decision amount to a nullity. Although the proper step to take is to invite the parties to address the Court on that issue of jurisdiction, the Court will not set aside a correct decision on the ground that the trial Court had no jurisdiction merely on the ground that counsel were not invited to address the trial Court on it; National Bank of Nigeria Ltd. v. Weide & Co. Nigeria Limited & Ors (1996) LPELR-1954(SC). In Katto v. Central Bank of Nigeria (1991) LPELR-1678(SC), the Supreme Court recognized that the issue of jurisdiction could be raised suo motu by the Court but cautioned, page 31 of the E-Report:
‘However in taking the question of Jurisdiction suo motu prudence and the principle of fair hearing demand that counsel be given opportunity to be heard on the issue before a decision is arrived at.
This Court will however not set aside a correct decision that the trial Court had no jurisdiction merely on the ground that counsel were not invited to address the trial Court on it.’
The factor that would determine whether an appellate Court will allow an appeal on the ground that a point was raised suo motu without giving the parties opportunity to address it thereon, would be whether the action of the lower Court in resolving the said issue, has led to a miscarriage of justice; Stirling Civil Engineering (Nigeria) Ltd v. Yahaya (2005) LPELR-3118 (SC); Gbagbarigha v. Toruemi & Anor (supra). If a miscarriage of justice has occurred, the decision will be set aside.
An alleged miscarriage of justice must be real and evident, not conjectured. Expounding on circumstances that may constitute a miscarriage of justice, Peter-Odili, JSC in Oke & Anor v. Mimiko & Ors (2013) LPELR-21368(SC) held, pages 37b ? 39 of the E-Report:
“On what amounts to miscarriage of justice, this Court has in a long line of judicial authorities set out some definitions on what can in the course of adjudication be termed “miscarriage of justice”.
Tobi JSC in Gbadamosi v. Dairo (2007) 3 NWLR (pt.1021) 282 at 306 treated it thus:-
“Miscarriage of justice connotes decision or outcome of legal proceedings that is prejudicial or inconsistent with the substantiated rights of the party. Miscarriage of justice means a reasonable probability of more favourable outcome of the case for the party alleging it. Miscarriage of justice is injustice done to the party alleging it”.
In Aigbobahi v. Aifuwa (2006) 6 NWLR (pt. 976) 270 at 290 – 291 this Court said:
“…miscarriage of justice can be said to be such a departure from the rules which permeate all judicial process as to make what happened not in the proper sense of the word judicial procedure at all. What constitutes a miscarriage of justice vary, not only in relation to particular facts, but with regard to the jurisdiction invoked by the proceedings in question. It is enough if what is done is not justice according to law”.
The two definitions above say it as it is and in simple term would mean that when in the course of a proceeding the goal post is shifted to the detriment of one of the parties or where it can be said that from what had transpired from the very beginning of the judicial process or at any point during the exercise of the judicial proceedings that the scale of justice had been tilted to favour one party thus jeopardizing the equal right of the other party then a miscarriage has occurred.”
There is a miscarriage of justice where there are grave or serious errors in the proceedings as to make the proceedings fundamentally flawed. It simply means that the Court has failed to do justice; per Rhodes ? Vivour, JSC in Nwankwoala v FRN (2018) LPELR-43891(SC).
To my mind the circumstance of this case falls within the exceptions prescribed in Gbagbarigha v. Toruemi & Anor (supra). The trial Court raised and relied on extant laws which had a bearing to the case and which were ignored or neglected by the parties in the matter. The learned trial Judge, in whose bosom the extant laws lay, was right to have employed the said laws in the resolution of the matter raised suo motu. I must recognize that there would have been no cost or delay to having the parties address the trial Court on the applicability of the said extant laws to the claim of the Appellant. However, the Appellant has not been shown to have suffered any miscarriage of justice.
For this reason and for the fuller reasons given in the lead Judgment, I also dismiss this appeal.
JOSEPH EYO EKANEM, J.C.A.: I read in advance the judgment of my learned brother, Tur, JCA. The trial Court suomotu raised the issue of whether or not Edumoga is a District in respect of which there would be contest for District headship. The Court thereafter and without calling for addresses from counsel proceeded to consider and resolve the issue to the effect that under the new system of local government administration there is nothing like Edumoga District. At page 195 of the record, the trial Court stated that, Since there is no District now known as Edumoga District, the issue of selection or appointment of District – head into the office will be a futile exercise. There is therefore no basis for the claim and reliefs sought by the plaintiff
On that basis, the trial Court dismissed the claim of the appellant.
A Court is bound to decide a case on the issues properly raised and canvassed by the parties. However, a Court may, for the sake of attaining the ends of justice, raise an issue suo motu. Where the Court does so, the general position of the law is that it must afford the parties an opportunity to be heard before it can determine the case on the issue. Where it is established that the issue raised suo motu by the Court without affording the parties a hearing is fundamental and has occasioned a miscarriage of justice, the parties’ right to fair hearing would have been breached and the proceedings are liable to be set aside. See Chami V UBA Plc (2010) 6 NWLR (Pt. 1191) 474, Yar’Adua V Yandoma (2015) 4 NWLR (Pt. 1448) 123 and Mainstreet Bank Ltd V Binna (2016) 12 NWLR (Pt. 1526) 316.
There are however exceptions to the requirement that a Court raising an issue suo motu must afford the parties an opportunity to address on it before it can base its decision thereon. The exceptions are:
(i) where the issue relates to the Court’s own jurisdiction;
(ii) where both parties were not aware of or ignored a statute which may have a bearing on the case; and
(iii) where on the face of the record serious question of the fairness of the proceedings is evident. See Ominiyi V Alabi (2015) 6 NWLR (Pt. 1456) 572, 592 – 593 and Angadi V PDP (2018) 15 NWLR (Pt. 1641) 1, 23.
The issue raised suo motu by the trial Court falls under (ii) above = as it relates to Local Government Law, 2007 which, according to the trial Court, does not list Edumoga as a District. Consequently, the failure of the trial Court to call upon parties to address it on the issue is not fatal to its decision.
It is for the above reasons that I agree with the conclusion of my learned brother, Tur, JCA, that the appeal lacks merit. I accordingly dismiss it.
Appearances:
Jonathan Akeme, Esq. with him, J.K. Ikyuagbu, Esq. (holding brief for P.A. Omengala, Esq.)
For Appellant(s)
Joseph P. A. Agbo, Esq. for 1st-2nd and 5th RespondentsFor Respondent(s)
