GABRIEL C. IDEH V. MR. D.O. ONYEJESE & ANOR.
(1997)LCN/0329(CA)
In The Court of Appeal of Nigeria
On Friday, the 16th day of May, 1997
CA/B/166/95
RATIO
COURT: WHETHER IN A MATTER IF DISCRETION JUST ONE CASE CAN BE AN AUTHORITY FOR ANOTHER
In the case of Jenkins v. Bushby (1891) 1 CH 484 at 495 Kay L.J. opined thus:- “In matters of discretion no one case can be authority for another, and the court cannot be bound by a previous decision to exercise its discretion in a particular way, because it would be in effect putting an end to the discretion,” PER IGE, J.C.A.
APPEAL: WHETHER THE COURT WILL HESITATE TO INTERFERE WITH THE EXERCISE OF THE TRIAL JUDGE’ DISCRETION
This court will hesitate to interfere with the exercise of a trial Judge’s discretion unless it is satisfied that the exercise would be an injustice to one or other of the parties. See the case of: Maxwell v. Keun (1928) 1 KB 645 at 633. PER IGE, J.C.A.
JUSTICES:
JUSTIN THOMPSON AKPABIO; Justice of The Court of Appeal of Nigeria
SYLVANUS ADIEWERE NSOFOR; Justice of The Court of Appeal of Nigeria
ATINUKE OMOBONIKE IGE; Justice of The Court of Appeal of Nigeria
Between
- GABRIEL C. IDEH – Appellant(s)
AND
- MR. D.O. ONYEJESE
2. MRS BEATRICE ONYEJESE – Respondent(s)
IGE, J.C.A. (Delivering the Leading Judgment): In the court below the respondents as plaintiffs took out a Writ of Summons against the appellant in suit No.AG/7/91 claiming in their 42 paragraphs Amended Statement of claim as follows:-
“1. An order setting aside the spurious document titled:
“Deed of Assignment dated 12th day of December, 1989” purported to be executed between the plaintiffs and the defendant on grounds that:
(a) It contravenes and offends the provisions of the Money Lenders Law, Cap. 100, Volume IV, Law of Bendel State of Nigeria, 1976.
(b) The purported agreement and security therein specified and the entire transaction are usurious, harsh and unconscionable.
(c) The purported transaction is spurious and fraudulent having regard to the circumstances of this case.
2. A declaration that the said “Deed of Assignment” dated 12th December, 1989 is illegal, unenforceable null and void and of no effect whatsoever.
3. An order compelling the defendant to release forthwith the 1st plaintiff’s Peugeot 404 Pick-Up Vehicle with Index No. 6827 GB with Engine and Chassis Nos. 10001796 respectively and all documentary particulars related thereto.
4. An order compelling the defendant to release forthwith the 2nd plaintiff’s two cold-rooms and/or Refrigerators documents as securities for the said loan which the 2nd plaintiff has fully and finally paid to the defendant.
5. Payment of N300.00 (Three hundred Naira) per day from the date of the wrongful seizure and detention of the vehicle No. BD 6827 GB that is from 2/3/90 until the day of judgment in this suit or until the vehicle is released to the 1st plaintiff.
6. N10,000.00 (Ten thousand Naira) being general damages for wrongful seizure and detention of the plaintiffs’ said goods. DATED AT AGBOR, this 10th day of October, 1991.”
The defendant/appellant also filed an amended Statement of Defence containing 24 paragraphs wherein he denied all the 42 paragraphs of plaintiff/respondents’ Statement of Claim with the exception of paragraphs 1 & 2. His Amended Statement of Defence ended up in paragraph 23 with the following contentions:
“(a) Plaintiffs are not entitled as claimed on paragraphs 35 to 42(1) (2) (3) (4) (5) and (6) or at all:
(b) This suit be dismissed in that it is scandalous, frivolous and abuse of process.
(c) The defendant is not guilty of any offence cognisable in law to warrant the grant of the prayers sought and same is deserving of an outright dismissal.
DATED AT AGBOR THIS 5TH DAY OF NOVEMBER, 1991.”
Before the hearing began in the case the parties filed several applications to which the learned Trial Judge delivered various Rulings. When the case proceeded to trial parties also filed various applications including an originating summons and an application for the committal of the defendant/appellant. The commissioner of Police, Delta State, The Attorney-General Delta State and Peter Mordi (Alias Able Dealer) to prison for their contempt of court upon the grounds set forth in the schedule subjoined hereunder.
Schedule
“1. The defendant/respondent and other respondents herein named have failed, refused and/or neglected to obey the Order of Court “restraining any of the respondents from selling or interfering with the RES (Motor Vehicle) in this application till the 2 Motions on Notice are considered” as contained in the ENROLMENT OF ORDER dated the 31st day of August, 1992.
And for an Order that the costs of and occasioned by this motion be paid by the defendant/respondent and other respondents to the plaintiffs/applicants.
And for such further Order or Orders as this Honourable Court may deem fit to make in the circumstance.
DATED AT OGWASHI-UKU THIS 6TH DAY OF NOV., 1992.
(Sgd) DR. C.Y.O. ADEL
Counsel for plaintiffs/applicants
39, Agidiehe Street,
Ogwashi-Uku – Nigeria.
The applicants for Orders of Committal against appellant and the 3 other respondents also swore to an affidavit of 9 paragraphs in support of the Motion.
The affidavit reads thus:
Affidavit in support of Notice of Motion:
“I MRS BEATRICE ONYEJESE, business woman and house wife, residing at No. 5 Hausa Street, Boji Boji Owa, Nigerian, make oath and states as follows:-
1. I am the 2nd plaintiff/applicant in these proceedings and have the consent of the 1st plaintiff/applicant who is my husband, to swear this affidavit.
2. On 20/8/92, the 1st plaintiff/applicant and I filed a motion on notice for certain reliefs. This motion has not yet been heard by this Honourable Court.
3. On 31/8/92, the 1st plaintiff and I together with the defendant/respondent and other respondents appeared in Court whereupon this Honourable Court made an Interim Order, an Office copy of which, is here referred to as Exhibit 1.
4. The defendant/respondent and the other respondents have refused, failed and/or neglected to obey the said Interim Order of this Honourable Court by selling and/or interfering with the vehicle Pick-Up No. 404, Registration No. BD 6827 GB with Chassis No. 10001796.
5. The defendant/respondent – Gabriel Ideh has boasted to me that he would, as far as the said vehicle is concerned, do anything in defiance of the Interim Order of this court with impunity.
6. The said Gabriel Ideh – the defendant in this case, has been intimidating one of my witnesses in this case (Prince Felix Etumonor) of Royal Palace, Umunede. A copy of the said Etumonor’s letter to the Registrar High Court of Justice Agbor is here referred to as Exhibit 2.
7. In expatiation of paragraph 4 supra, the said “RES” (motor vehicle)” – Pick-Up 404, Registration No. BD 6827 GB is no where to be found at present and I believe out of my own knowledge of the defendant/respondent that he – the defendant/respondent – Gabriel Ideh, has removed the said Car from the Police station Agbor to elsewhere.
8. The said vehicle was with the Police at Agbor Police station as at 31/8/92 and had been with the Police since 4/10/91. A certified True Copy of Ruling of this Court dated 4/10/91 is here referred to as Exhibit 3.
9. I swear this affidavit in support of this application and, paragraphs 1 to 8 above are true to the best of my knowledge, information and belief.
(Sgd) MRS. BEATRICE ONYEJESE
DEPONENT.
Sworn to at the High Court Registry, Asaba this 6th day of Nov; 1992.”
Applicants also swore to a further affidavit. The defendant/appellant swore to a Counter-affidavit of 7 paragraphs refuting the Motion thus:
COUNTER AFFIDAVIT TO REFUTE MOTION
“I, Gabriel C. Ideh, Male, Nigerian citizen residing at No. 60 Alika Street, Boji Owa, Delta State, do make oath and state as follows:-
1. That I have not failed, refused or neglected to obey the interim order of this court dated on 31/8/92 as to justify my being called upon to be committed to prison for contempt of this Honourable Court.
2. That paragraphs 1, 2, 3, 4, 5, 6, 7, 8 and 9 of applicants affidavit are all untrue and denied.
3. In further answer to paragraph 1 above I state emphatically as follows:-
(i) That the applicants own Exhibits attached to her further and further affidavit at paragraph 15(i) and (ii) Sworn to in this Court on 4/9/92 and herein attached as Exhibits “A” and “B” show that the vehicle BD 6827 GB has passed on from Chief P.I. Mordi to one Valentine Offor as far back as 14/8/92.
(ii) The applicant’s motion which led to the alleged interim order of 31/8/92 was filed on 20/8/92. (iii) Paragraph 14 of same affidavit states, ‘That our said vehicle was surreptitiously removed from the Police Station to the Sales premises of Mr. Peter Mordi (Alias Able Dealer) on 30th July 1992 and when I discovered this I quickly reported the matter to the Agbor Police.”
(iv) Paragraph 11 of applicant’s Affidavit filed on 20/8/92 states, “That on 31st July 1992, I was informed by my relation, Mr. Ikechukwu Malia whom I verily believe that while he was travelling away from Town he saw out said vehicle being towed to the Town”.
(v) While paragraph 12(a) of the same affidavit reads “That the said Ikechukwu Malia further informed me and I believe him that when he later returned from his travel on 31/7/92 he saw the vehicle at the sales premises of one Peter Mordi (Alias Able Dealer) being displayed for sale.
4. That in a petition dated March 25th 1991, the 1st plaintiff, Mr. D.O. Onyejese reported to Police that I have sold the vehicle Exhibit “C”.
I sold the vehicle to Chief P.I. Mordi on 16/1/91 Exhibit “D” not after 31/8/92.”
5. That applicants Exhibit 2 is blatant falsehood and a forgery as there is no body or any existing human being by name “Prince Felix Etumonor” or Royal Palace Umunede.
6. That this application is illogical, based on falsehood and confused reasoning as evidenced by applicants Exhibits A, B, C, herein, which are all applicants own documents.
7. That I make this affidavit sincerely believing the contents to be true.
(Sgd) ???
DEPONENT
Sworn to at the High Court Registry this 24th of day of Nov., 1992.”
On 13/1/93 the court began to hear argument in support of application filed for committal of the appellant for failure to obey the Court Order made on 31/8/92. Counsel for the applicant first addressed the court on the same date. Counsel for the respondent/appellant Mr. Dumkwu also began his address on 13/1/93 when the court adjourned Further hearing of the Reply to 29/1/93. On 29/1193 Mr. Dunkwu asked for an adjournment to enable him file a further Counter/affidavit to refer to the Counter/affidavit already filed on 22/4/92. Counsel for the applicant, Dr, Adei objected to the application for an adjournment, the learned Trial Judge delivered the following Ruling on 29/1/93.
RULING
“I have considered the arguments before me and it would appear that the applicant will be prejudiced if more averments are allowed, moreso when, the applicant had concluded his argument. The respondent is only allowed to rely on the affidavit evidence he had already tendered, either directly or referred to in the said counter-affidavit. Consequently, I find it difficult to allow the application now made.
(Sgd) A.N. Maidoh,
JUDGE.
29/1/93.”
It is against this Ruling that the appellant has appealed to this court.
The appellant has filed 4 grounds of appeal, and formulated 3 issues for determination.
The following are the 4 grounds (without their particulars).
“1. The learned Trial Judge erred in law when he refused the defendant/respondent/applicant’s application to file a Further Counter-Affidavit.
2. The learned Trial Judge misdirected himself when he failed to take judicial notice of the records in Court’s file.
3. The learned Trial Judge was erroneous in law and amounted to an injudicious exercise of discretion vested in the learned Trial Judge when he refused the applicant to refer to paragraphs 16, 17, 18, 19 and 20 of the Amended Statement of Defence filed on 6th day of November, 1992 respectively or to file a Further Counter Affidavit to refer to the said paragraphs only.
4. The Learned Trial Judge was in grave error of law when he failed to consider ever or at all the submission that the failure to include in the Counter Affidavit the paragraphs now sought to be averred in the Further Counter Affidavit the error if ever there was one is due to Counsel’s negligence or inadvertence.”
At page 32 of the Brief of argument filed by appellant’s counsel, he submitted these 3 issues for determination:
“1. Whether the learned Trial Judge was right in overruling the application of the appellant to refer and use paragraphs 16, 17, 18, 19, and 20 in the amended statement of defence filed on 6th November, 1991 and paragraphs 11, 18, 19, 21, 22 and 23 of the Counter Affidavit filed on 31st day of August, 1992 which are in the case file, before the said Judge the said documents which we also served on the respondents.
2. Whether the learned trial Judge was right to have refused the appellant an adjournment to incorporate in a further affidavit, paragraphs in the amended statement of defence, counter affidavit and further counter affidavit.
3. Whether the learned trial Judge was right in refusing to grant the appellant adjournment since counsel’s inadvertence or negligence can not be visited on the client. Moreso, when the committal proceedings is quasi-criminal and the liberty of the appellant was at stake.”
For their own part the respondents formulated 4 issues for determination as follows:-
”A. Was the appellant right in disposing the Peugeot 404 Pick-Up, the res during the pendency of the case despite Court’s Order thereby knocking off the substratum of the case and thereby making whatever the judgment of the Trial Court, would be a nugatory?
B. Were the respondents not right in bringing the Committal Proceedings in consonance with the High Court (Civil Procedure) Rules 1988 as applicable to Delta State when the appellant disposed the res contrary to Court Order and when the case was pending?
C. Was the learned Trial Judge not right in not allowing the appellant to use the Additional Counter-Affidavit filed on 31/8/92 when the respondents have moved their application and the appellant had already replied midway, since this would foreclose the respondents’ as they cannot now join issues with the appellant on the affidavit evidence on record?
D. Is the wisdom of appealing at the close of the substantive matter not desirable instead of intermittent interlocutory appeals which could be taken together at the close of the case with the main issues?””
I have examined carefully the grounds of appeal filed by the appellant in this case and I do not see how grounds 2, 3, & 4 relate to the Ruling delivered by the learned Trial Judge on 29/1/93. Anyone reading the grounds of appeal filed by the appellant would think, the appeal was against a different Ruling from the one delivered by MAIDOH J., on 29/1/93.
I shall quote hereunder the whole record of proceedings that took place on 29/1/93 in respect of suit No. AG/7/91 as at page 236 – 237 of the records.
“BEFORE HIS LORDSHIP, HON. JUSTICE A.N. MAIDOH JUDGE:
ON FRIDAY, THE 29TH DAY OF JANURAY, 1993:
AG/7/9I: D.O. Onyejese & Anor v. G.C. Ideh.
Parties in court, except 1st plaintiff.
Dr. C v. O. Ade; for plaintiff/applicant.
P.C.E. Dunkwu for defendant/respondent.
Dunkwu continues with his reply.
Relies on Statement of Defence filed on 22/4/91. As for counter-affidavit of 31/8/92. At this stage Mr. Dunkwu asks for adjournment to enable him to file Further Counter-Affidavit to refer to the Counter-Affidavit already filed and the Statement of Defence filed on 22/4/91. The matter before the court is quasi-criminal. The facts to be mentioned are not new.
Adei objects:
(1) the applicant had concluded argument on the motion filed for committal on 13/1/93.
The respondent’s counsel had started replying based on the counter-affidavit to refute the motion. All the facts which he now wants to expose were available to him at all times. Asks that Dunkwu should conclude his reply. Dunkwu applies for an adjournment to enable him file a further Counter-Affidavit to enable him to refer a certain paragraphs filed in the Counter-Affidavit filed on 31/8/92. AND certain paragraphs in the Amended Statement of Defence filed on 22/4/91 and nothing more.
Adei objects for an adjournment to enable Dunkwu improve on his case.
Applicants have argued their motion on 13/1/93 and relied on the facts deposed to in the affidavit in support of the application. The respondent deposed to Counter-Affidavit opposing the application.
RULING:
I have considered the arguments before me and it would appear that the applicant will be prejudiced if more averments are allowed, moreso when, the applicant had concluded his argument. The respondent is only allowed to rely on the affidavit evidence he had already tendered, either directly or referred to in the said counter-affidavit. Consequently, I find it difficult to allow the application now made.
(Sgd) A.N. Maidoh,
Judge
29/1/93.”
There is nowhere in the Records that the learned Trial Judge was called upon to take judicial notice of certain Records in Court’s file hence the issue of refusal or denial of fair hearing does not arise.
Ground 2 therefore fails as it does not relate to the Ruling appealed against. In ground 3 the appellant complained about learned Trial Judge’s refusal to allow the applicant refer to paragraphs 16, 17, 18, 19, & 20 of the Amended Statement of defence filed on 6/11/91 and the Counter/affidavit paragraphs 11,18, 19, 21, 22, & 23 filed on 31st Day of August, 1992, respectively or to file a further Counter/affidavit to refer to the said paragraphs only – I am afraid this ground is also a non sequitur. It does not relate or arise from the Ruling of the learned Trial Judge. In his application for an adjournment, Counsel referred to a Statement of Defence filed on 22/4/91 whereas in Ground 3 he was talking about an Amended Statement of Defence filed on 6/11/91.
Ground 3 fails and is hereby struck out. In Ground 4 the appellant is complaining of the grave error committed by the learned Trial Judge when he failed to consider the submission that the failure to include in the counter affidavit the paragraphs now sought to be averred in the further counter affidavit is due to counsel’s negligence or inadvertence.
I have had several careful looks at the entire proceedings of 29/1/93 before MAIDOH J. I fail to see any portion wherein counsel for the appellant pleaded his own negligence or inadvertence in the omission allegedly referred to in his counter-affidavit. In his application for an adjournment, counsel for the appellant never owned up that he was negligent or that the omission sought to be rectified by an adjournment was due to his fault which should not be visited upon his client.
This ground of appeal is an afterthought and has no bearing whatsoever with the ruling of the learned Trial Judge. Ground 4 also fails.
In framing a ground of appeal, Counsel for the appellant must conform with the provisions of Order 3 rule 2(4) of the Court of Appeal Rules. The Rules provide thus:-
“(4) No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of the evidence, and any 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.”
In this case appellant’s counsel has filed 4 grounds of appeal out of which only one discloses a reasonable ground of appeal relating to the Ruling delivered by the learned Trial Judge. Grounds 2, 3, & 4 are bad, incompetent and irrelevant and do not comply with the provisions of Order 3 rule 2(4) of the Court of Appeal Rules hence they are hereby struck out. See the case of Innih v. Ferado Agro & Const, Ltd. (1990) 5 NWLR (Pt. 152) 604.
‘I am now left with only Ground 1. Since an appeal is argued on issues and not on grounds, I have got to examine which of the issues submitted by the appellant is covered by Ground 1.
It is trite law that issues for determination in an appeal must relate to grounds of appeal. Appellant who has filed only one competent ground of appeal cannot formulate 2 or 4 issues from that one ground – See the cases of:
Adelaja v. Fanoiki (1990) 2 NWLR (Pt.131) 137 at 148.
Nwosli v. Udeaja (1990) 1 NWLR (Pt. 125) 188 at 217.
It is wrong for a party to formulate more issues than the grounds of appeal.
In this case the only issue which can arise from Ground 1 is Issue 2 and it reads thus:
Whether the learned trial Judge was right to have refused the appellant an adjournment to incorporate in a further affidavit, paragraphs in the amended statement of defence, counter-affidavit and further counter-affidavit.”
In support of this issue the appellant has argued that the reason given by the learned trial Judge when he refused to grant an adjournment was untenable and erroneous. He conceded the fact that the Judge had a discretion whether or not to grant or refuse an application for an adjournment. Counsel however submitted that in the circumstances of the instant case, the learned trial Judge was injudicious in the exercise of his discretion when he refused to grant the appellant an adjournment. He cited several cases to support his case. Among them are the following:
Udo v. The State (1988) 3 NWLR (Pt. 82) 316 at 326.
University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143.
Ntukidem v. Oko (1986) 5 NWLR (Pt. 45) 909.
With regard to this issue I could hardly find anything said by the respondent in his brief of argument. The respondent’s brief of argument addressed different issues from those posed by the appellant. The respondent formulated 4 different issues on matters not contained in the appellant’s brief or grounds of appeal, The counsel for the respondent went off target as far as this appeal against refusal to grant an adjournment was concerned, and began to make out the applicant’s case in the committal proceedings. The respondent formulated issues which are not distilled or related to the grounds of appeal filed by the appellant. The material issue in this appeal and the matter under controversy is that the learned Trial Judge refused the appellant’s application for an adjournment midway in his address to enable him file a further additional counter-affidavit. The learned Trial Judge refused to grant an adjournment and the appellant has appealed against the Ruling of Refusal.
The only relevant material answer given by the respondent to this material point in his brief of argument was his submission under his Issue C. He submitted that the learned Trial Judge was very right in not allowing the appellant to argue a further counter/affidavit wherein new/fresh facts were raised in the course of his counsel’s reply and the parties at this stage were bound by affidavit evidence. Counsel sees the application as a ploy to frustrate the case. This is the only useful portion in the entire brief of the respondent. I shall make further comments later on about the briefs filed by both parties to this appeal. Now to the only relevant issue in this appeal. When a party in a case applies for an adjournment during the trial, he does not get it automatically or on a platter of gold. He must satisfy the court that he has a good reason to seek for an adjournment. The trial Judge also has a judicial discretion either to grant or refuse an application for an adjournment. The trial Judge has a duty to consider the application on its merits and state his reasons for his decision to grant or refuse the application.
In this case the learned trial Judge was hearing arguments on a Motion for committal to prison for contempt against the appellant and 2 others. The counsel for the applicants filed affidavit and further affidavits in support of the motion and attached some exhibits to these affidavits. Counsel for respondent (appellant in this case) filed counter/affidavit and further counter/affidavit. The applicants’ counsel had completed his address and respondent’s counsel had also commenced his own address. In the middle of his address, counsel prayed for an adjournment to file a further counter/affidavit to incorporate some paragraphs in his amended statement of defence already filed in the original suit which have given rise to the contempt proceedings. Counsel for the applicants opposed the application for an adjournment and the application was refused by the learned Trial Judge. Let us look at the reasons given for the refusal. The Ruling is very short hence I shall quote it hereunder.
RULING
“I have considered the arguments before me and it would appear that the applicant will be prejudiced if more averments are allowed moreso when, the applicant had concluded his argument. The respondent is only allowed to rely on the affidavit evidence he had already tendered, either directly or referred to in the said counter/affidavit. Consequently, I find it difficult to allow the application now made.”
Upon a careful scrutiny of the reasons given by the learned trial Judge for his refusal, it seems to me that the learned Trial Judge was only concerned with the case of the applicants. He is particular about the respondent not producing more averments to prejudice the case of the applicants. He has shut his eyes to the rules of natural justice that all parties must be given a hearing in a trial. If the respondent wishes to tender more affidavit evidence to defend his case in committal proceedings, should a trial court not allow him to do so in the interest of justice and fair hearing? The learned Trial Judge went further in his Ruling to commit more blunders by saying that the respondent is only allowed to rely on the affidavit evidence he had already tendered either directly or referred to in the said counter-affidavit.
In other words, he is limiting the scope of the defence of a person under trial in a committal proceeding which is quasi criminal in nature. Why the hurry? And why the use of the long stick to limit the defence of the appellant? In my view the learned trial Judge has not considered the application for an adjournment judiciously and judicially in this case and his ruling of a refusal must be set aside. He was most unfair and arbitrary to the respondent in the committal proceedings and the appellant in this case. See the case of: Udo v. The State (1988) 3 NWLR (Pt.82) 316 at 326. In an application for an adjournment, a trial Judge must be mindful of the nature of the proceedings before him when considering whether or not he will grant an adjournment. In the instant case the learned Trial Judge was hearing a case of Committal for contempt, of his Order, hence he ought to be very careful in making sure that he gives both sides equal opportunities to state their case fully, especially the party who seems to be on trial for his alleged disobedience. He did not do so in this case. The question of an adjournment is a matter in the discretion of the learned trial Judge and it must depend on the facts and circumstances of each case. Each case has its own peculiar circumstances. In the case of Jenkins v. Bushby (1891) 1 CH 484 at 495 Kay L.J. opined thus:-
“In matters of discretion no one case can be authority for another, and the court cannot be bound by a previous decision to exercise its discretion in a particular way, because it would be in effect putting an end to the discretion,”
This court will hesitate to interfere with the exercise of a trial Judge’s discretion unless it is satisfied that the exercise would be an injustice to one or other of the parties. See the case of:
Maxwell v. Keun (1928) 1 KB 645 at 633.
It is my view that this is a case that warrants a review of the learned trial Judge’s Ruling, and I am in duty doing so here. In sum this appeal succeeds and is hereby allowed. The Ruling of Maidoh J. delivered on 29/1/93 is hereby set aside and the appellant is allowed to file a further counter/affidavit in support of his case.
I cannot end this appeal without some comments on the briefs filed by both parties to this appeal. The appellant filed a 40 paged document which he labelled appellant’s brief of argument. Pages I to 32 consist of introduction, facts and a reproduction of previous motions, affidavits and counter/affidavits which have no bearing whatsoever on this appeal, The 4 issues were formulated on page 32. Counsel lumped up his arguments on the issues together on pages 33 – 39. The brief is unnecessarily verbose, substantially irrelevant and very defective in most parts. In fact it is a bundle of pettifogging – to use the language of UWAIS, J.S.C. in the case of Adehi v.Atega (1995) 5 NWLR (Pt. 398) 656. I would have discountenanced the entire brief as bad but for the interest of justice. Counsel paid no attention to the provisions of Order 6, rules 1, 2, 3 of the Amended Court of Appeal Rules.
The Brief of argument filed by the respondent although shorter in volume, is in no way better than that of the appellant. He failed to observe all the Rules of court pertaining to issue of brief writing. He filed his issues independently of the grounds of appeal filed by the appellant. The issues for determination is a very serious part of a brief and ought to be carefully formulated. Issue should be framed in such a way that it should arise from and relate to the grounds of appeal filed. The grounds of appeal filed represent and reflect the questions in controversy in the appeal. See the case of:
Western Steel Works Ltd v. Iron & Steel Workers Union of Nigeria (1987) 1 NWLR (Pt. 49) 284 at 304. The respondent has woefully failed to comply with the rules pertaining to filing briefs of argument.
Order 6 r. 4(1) & (2) of Court of Appeal Rules give a guideline as to what a respondent is required to file and when he is required to file same. Rule 4 provides thus:-
“(1) The respondent shall also within forty-five days of 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 with rule 3(1), (2) (3) (4) and (5) of the Order.”
The respondent formulated his own issues as if he was a cross-appellant. It is my view that counsel in cases before the Court of Appeal and the Supreme Court should not feel too big to read and study briefs of well experienced and successful lawyers before writing their own briefs. This will help them to improve their own standards. I recommend same and the book written by Nnaemeka Agu, J.S.C. on Manual of Brief Writing for the reading of the two counsel in this appeal. They will be richly blessed.
As I said earlier on, this appeal succeeds and is allowed. The Ruling of Maidoh J. delivered on 29/1/93 is hereby set aside and the appellant is allowed to file a further counter/affidavit in support of his case in suit. No. AG/7/91 – re-committal Proceedings. No Order as to costs.
AKPABIO, J,C.A.: I have read in advance the lead judgment of my learned Sister, ATINUKE IGE, J.C.A., just delivered and agree with her that this appeal should be allowed for the reasons so ably stated by her.
The question for determination was whether the learned trial Judge was right in refusing to grant adjournment for the learned counsel for appellant to file a further counter-affidavit to bring in the sub-stance of another counter-affidavit earlier filed in the same proceedings which was then before the court. The learned trial Judge had refused to grant the said adjournment to file the said Further Counter-Affidavit because the applicant/respondent had already moved his motion and the appellant himself had already commenced his reply, before turning round half-way to ask for adjournment.
It is my view, that since the committal proceedings was a quasi-criminal matter, more or less a “trial within a trial” in which the appellant was the accused person, sought to be punished for contempt of court committed “ex facia curiae”, he should be given every opportunity to defend himself. It is my further view that even if fresh matter not already before the court was brought in through the Further Counter-Affidavit, the appellant/respondent would or should in the interest of justice be allowed to re-act to it by filing a “Further Affidavit” to dispute or answer any new point raised.
It must be emphasized that it is not improper for a High Court to refer to documents in the file of the case before it, but outside applicant’s affidavit, in arriving at a decision (Fumudoh v. Aboro (1991) 9 NWLR (Pt.214) 210; Oke v. Aiyedun (1986) 2 NWLR (Pt. 23) 548; Mhambe v. Shide (1994) 2 NWLR (Pt.326) 321 at 330. If therefore, as contended by the learned counsel for the appellant, the whole idea of wanting to file a “Further Counter-affidavit”- was to bring to the attention of the court, a portion of a statement of defence, or an earlier Counter-affidavit already in the court’s file, he should have been allowed to do so.
I therefore also allow this appeal, set aside the Ruling of Maidoh, J. in this suit dated 29/1/93, and in its place order the appellant to be allowed to file the further counter-affidavit he had wanted to file. I too make no order as to costs.
NSOFOR, J.C.A.: I had the privilege to read before now in draft the leading judgment by Ige, J.C.A. just delivered.
The Action giving rise to the present interlocutory appeal was initiated by or with a “Motion on Notice” It was dated the 6/11/92 and copied in pages 204 to 205 of the Record of Appeal. The dicta, per Strout, C.J. in Kiwi Polish Co. v. Kempthorne (1922) N.Z.L.R. 177 are conclusive and apt. They repay my respectful quotation. Said the noble and learned C.J.,
“It is a civil proceeding commenced in a manner prescribed by the Rules. I cannot limit the meaning of the term Action by holding it does not include the procedure in this case.”
But see also The U.A.C. Ltd. v. A.P.Z. Umengo (1959) 3 E.N.L.R. 30. 31.
The “action” is an off-shoot of the substantive action in Suit No. AG/7/91, commenced with a writ of summons, issued out of the Bendel State (since defunct) High Court holden in Agbor on the 1/3/91.
The “Motion ON NOTICE” was made pursuant to:-
“Order 42 Rules 1, 2 and 3 of the High Court (Civil Procedure) Rules 1988, Inherent Jurisdiction Section 74(1)(M) of the Evidence Act.”
That was or is the quo warranto for the action or motion.
Part of the “Motion ON NOTICE” reads:-
“TAKE NOTICE that this Honourable Court will be moved……. for an order that Gabriel C. Ideh,…….. be committed to prison for their contempt of court (This Honourable Court) upon the grounds set forth in the schedule subjoined hereunder:-
1. x x x x x x
(Sgd) Dr. C.Y.O. Adie.”
It is stating the obvious that there was filed in support of the motion an affidavit of nine (9) paragraphs. One Mrs. Beatrice Onyejese swore the affidavit. See pages 207 to 209 of the Record of Appeal. There was, also, filed an affidavit in opposition to the motion. Gabriel C. Ideh swore it. The affidavit in opposition, (copied in pages 218 to 220 of the Record of Appeal) has a total of seven (7) paragraphs.
The motion came on for the hearing before A.N. Maidoh, J. on the 13/1/93 Dr. C.Y.O Adei of counsel moved the motion. He argued the application fully. P.C.E. Dunkwu, Esq, of counsel “replicando” argued in reply on the 6/11/92, when he sought for and was granted a further adjournment to conclude his legal submissions till the 29/1/93.
In the course of the further submissions in reply on the said 29/1/93, Mr. Dunkwu sought for yet another adjournment to enable him file another affidavit in opposition to the motion. The learned counsel for the applicant opposed the application for the adjournment. It was the “decision” by the trial Judge on the application for a further adjournment that was the ‘fons et origo” indeed, the “causa causans”, of the present appeal.
In his Ruling “Off-the hook”, the Judge, in refusing the application, wrote:
(See page 237 of the Record):-
“Ruling:
I have considered the argument before me and it would appear that the applicant will be prejudiced if more averments are allowed, moreso when, the applicant had concluded his argument. The respondent is only allowed to rely on the affidavit evidence he had already tendered, either directly or referred to in the said counter-affidavit. Consequently, I find it difficult to allow the application now made.
(Sgd) A.N. Maidoh
(Judge)
29/1/93.”
I have given a synopsis of the antecedents of the action by the motion to enable and facilitate an appreciation of the issue central in the appeal, indeed, the back of it all, but more importantly, to help make my comments hereunder intelligible.
The grounds of appeal filed, the respective briefs of arguments, – all these have been set out succinctly with admirable lucidity in the leading judgment, Needless repeating the exercise, “etiam atque etiam”, again and again. I may permit myself to refer to any of them, where and when necessary to make my comments clear. Now, the grounds of appeal against a decision must relate to the decision. They (or it) should be a challenge to the validity of its “rationem decidendi” See the Egbe v. Alhaji case (1990) 1 NWLR (Pt. 128) 546, 590.
The learned trial Judge refused the application for a further adjournment, because, in his opinion, to grant it would be prejudicial to the applicant for a committal. It is difficult to conceive of how the one issue, on which the “decision” was made, could be proliferated into four (4) grounds of appeal, leading to the formulation of three (3) issues for determination in the appellant’s brief of argument, and four (4) issues, as formulated in page 4 of the respondents’ brief of argument. Grounds 2, 3 and 4 of appeal are not matters decided in the Ruling, appealed against. They are, accordingly, irrelevant for the purposes of the appeal before us. See Niger Construction Ltd v. Okugbeni (1987) 4 NWLR (Pt. 67) 787. The learned counsel has, now, in practical terms distilled three (3) issues from one sustainable ground of appeal. Is this permissible? An issue for determination in an appeal, which has no ground of appeal to back it, is as good as useless. Such an issue has been formulated, “in nibubus”, hanging in the air. See Osinupebi v. Saibu & Ors (1982) 7 SC 104, III; Western Steel Works Ltd. v. Iron & Steel Workers Union of Nigeria (1987) 1 NWLR (Pt. 49) 284. 304. The issues, thus distilled in the appellant’s brief from grounds 2, 3 and 4 of appeal, therefore, ought to be disregarded, discounted and discountenanced. This, I have done.
An appeal is argued on the issues as formulated, not on the grounds or a ground of appeal filed. See Oniah v. Oniah (1989) 1 NWLR (Pt. 99) 514.
The respondents had distilled four issues, none of which flows directly from the one sustainable ground of appeal filed, id est, the first ground of appeal. The consequence, thereof, is obviously. I need not repeat myself again and again. In the result, there is not a respondent’s brief of argument, really and in substance, filed in accordance with Order 6 Rule 2 of the Court of Appeal Rules. Nothing else needs to be said of the respondent’s brief. I have myself perused and studied the appellant’s brief as filed. In my respectful, opinion, with respect to the Solicitor who prepared it, it is not a brief, properly so called, indeed, it is a piece of sweet nonsense. The appellant’s Brief of Argument, has a grand total of forty (40) pages. Out of the forty pages thereof, Mr. Dunkwun devoted pages 1 to 32 stating the useless materials, e.g. endorsement on the writ of summons in Suit No. AG/7/91, various affidavits, wholly unrelated to the appeal, e.t.c., this formulation of the issues for determination covered part of page 32 and the arguments on his three (3) issues covered pages 33 to 39. Page 40 was devoted for counsel’s signature, and a list of some decided cases.
The appellant’s brief of argument as written, demonstrates in a bold relief an ignorance of what the contents of a good brief would be or contain. The Supreme Court and the Court of Appeal in several of their numerous decisions have made comments on Brief Writing and on the format and contents of a good brief. See Okechukwu Adimora v. N. Ajufoh (1988) 3 NWLR (Pt. 80) 1; Engineering Enterprises v. Attorney-General of Kaduna State (1987) 2 NWLR (Pt.57) 381, 414 to mention only a few.
In the counsel’s treatment of the issues as formulated by him in the appellant’s brief, one wonders which argument relates to which issue. It was left for the Justice preparing the judgment to decipher which piece of prose writing relates to any issue as formulated. This makes the already difficult task to the Justices much more onerous. Counsel should aim at something more and better than that. But see Union Bank of Nigeria Ltd. v. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt. 421) 514, per Wali, J.C.A. at page 578. It only remains for me to add that Nnaemeka-Agu’s “Manual of Brief of Writing”, ought to be a handbook to all those who look forward to engaging in the appellate court practice.
Now, the grant or refusal of an adjournment is an exercise by a court of its jurisdiction in Equity. It is discretionary. Afterwards, what is “discretion” but “discretio legalis est scire per legem quid sit justum”, a discretion to do what is just, what is judicial and what is judicious. Per Lord Wrenbury in Roberts v. Hopwood (1925) AC (P.C.) 57 at p. 613:-
“A discretion does not empower a man to do what he likes because he is minded to do so, he must in the exercise of his discretion do not what he likes but what he ought.”
The question, now, arises. Ought the learned trial Judge to have granted the appellant herein, an adjournment, “to enable him file a further counter-affidavit to enable him to refer to certain paragraphs filed in the counter-affidavit filed on 31/8/92 ” (see page 237 of the Record of Appeal) in the “Motion ON NOTICE” for the committal of the appellant, qua respondent in the court below?
Normally, an appellate court is usually very reluctant to interfere with the exercise of its discretion by a lower court. But an appellate court has a right and duty to inquire whether or not the discretion of a lower court was rightly exercised judicially – that is, in accordance with the law. If a court proceeds on a wrong principle in a matter within its discretion, its order may be set aside by an appellate court. Watson v. Rodwell (1976) 3 Ch. D. 380.
The “action” by the motion concerns and relates to the liberty of a Nigerian citizen, than which nothing is more precious. The proceeding set in motion is quasi-criminal.
Now, there were affidavits filed on both sides to the proceedings. These affidavits were in conflict. In such like circumstances, to resolve the conflicts, it is desirable, if not necessary, to take or hear oral evidence. See Otoola Atanda v. Olanrewaju (1988) 4 NWLR (Pt. 89) 394, 407; Eboh v. Oki (1974) 1 All NLR 280.
Assume “argumento” the Judge heard or took oral evidence to resolve the conflicts between the affidavit, in support of the motion for a committal to prison and the affidavit filed in opposition, would he (iudex) refuse to hear the oral evidence of any other witnesses the appellant, qua respondent or defendant in the proceedings, summoned. I would, rather, think not.
Now, then what is the distinction between the oral evidence and the affidavit evidence? Practically none. The Law of Evidence is a “Unity” subject to certain statutory exceptions there be or may be in criminal proceeding or trials. ‘Affidavit evidence” is nothing else than; “testimonium per tabulas datum”, in contradistinction with or to “testimonium viva voce.” If the Judge would not, and perhaps also could not decline to take one type of evidence, “a fortiori” , he would, not, as he could not, decline to take the other.
Was it a just, judicious, or judicial exercise of the learned Judge’s discretion, therefore, to have refused to adjourn to enable the appellant deliver a “testimonium pertabulas datum” i.e. a “Further Counter-Affidavit”, which the appellant, fighting for his liberty and freedom requested? Ought not the appellant be given every opportunity and facility to secure his liberty in the contempt of court proceedings – a quasi criminal trial?
Again, was it a proper and judicial exercise of his discretion to seek to restrict the appellant, in his defence as he (the Judge) wrote (and I apologize for the repetition necessary in the interest of clarity):
“The respondent is only allowed to rely on…. ”
(The Italics is mine for emphasis)
Again, I think not. And the appellant is defending his liberty, freedom from a conviction.
In my judgment, the learned trial Judge, in the circumstances of the quasi criminal “trial”, failed to exercise his discretion judiciously and judicially. An appellate court, which this court is, surely certainly, would intervene and interfere with such an exercise of its discretion by the court below. We ought, therefore, to interfere. I shall interfere “hic et nunc”.
In my respectful opinion, the “decision” appealed against, cannot be allowed to stand. It ought to be set aside, and the appeal be allowed, “eo ipso”.
It is for my above reason, and for the reasons more fully detailed in the leading judgment that I do hereby set aside the “decision” by A.N. Maidoh, J. delivered on the 29/1/93 and do allow the appeal accordingly. For the avoidance of a doubt, I do order that the appellant be allowed to file what he called a “Further Counter-Affidavit” in the committal proceedings.
Appeal allowed.
Appearances
P C. Dunkwu; For Appellant
AND
Respondent unrepresented For Respondent
