GOVERNOR OF EKITI STATE V. PRINCE JACOB OJOOYEWO & ANOR.
(2010)LCN/3663(CA)
In The Court of Appeal of Nigeria
On Friday, the 26th day of March, 2010
CA/IL/22/2002
RATIO
COURT: DIGNITY OF THE COURT AND DUTY OF COUNSELS, PARTIES OR PUBLIC NOT TO ATTACK THE PERSONALITY OF A JUDGE
This point in my humble view is very cardinal and must be deprecated. It is not very proper for counsel to attack the person of a Judge. I have always cautioned that because of the essence and purity in the administration of justice a counsel should be courteous to the court. Indeed this encompasses all and sundry, counsel, the litigating public, court of co-ordinate jurisdiction, and the public at large. We must learn not to disparage the court or its personnel except for gross misconduct on the part of the judge or its personnel.
The dignity of the court is absolutely sacrosanct and therein lies the ultimate pride of the legal profession, and so we must hesitate and resist the temptation to rebuke or insult a Judge in the conduct of a case. Even after a judgment is delivered a disappointed counsel or parties need not rain abuses or comment badly of the Judge or his judgment after its delivery. Counsel, parties or public at large can only criticize the judgement, tear it into pieces, complain if there is absolute corruption that can be proved against the Judge, but not to attack the Judge as a person. See cases of Anani vs The king (1951) 13 WACA 196, and In Re Edewor (1968) 1 All NLR 226. PER HON JUSTICE SOTONYE DENTON WEST, JCA
COURT: DUTY OF COUNSEL TO ASSIST THE COURT AND NOT MISLEAD IT
A counsel is a minister in the temple of justice and as an officer of the court, a counsel has a duty to assist the court rather than mislead it. See case of Pere Roberto (Nig) Ltd vs Ani (2009) 13 NWLR page 522 @ 534-535.
Per Adamu JCA, thus “It is pertinent to chastise the appellant’s counsel for his misrepresentation and misleading gesture to this court on the issue. As minister in the temple of justice and an officer of the court, he has the duty to assist rather than to mislead the court as he did in his brief in the present interlocutory appeal. Bawa vs Balarabe (1999) 6 NWLR (pt.605) 61, Kwaptoe vs Tsenyi (1999) 4 NWLR (pt 600) 571”
No matter how annoyed or indeed how unpleasant a judgment may be to a losing party, counsel or the litigating parties must not walk out on the court. Finally counsel should desist from accusing the court in open court for corruption as it undermines the integrity of the court, unless same has been proved. PER HON JUSTICE SOTONYE DENTON WEST, JCA
JUSTICES
DALHATU ADAMU (OFR) Justice of The Court of Appeal of Nigeria
SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
Between
GOVERNOR OF EKITI STATE Appellant(s)
AND
1. PRINCE JACOB OJOOYEWO
2. SUNDAY OWOLABI AJIBOYE Respondent(s)
CHIMA CENTUS NWEZE, J.C.A. (Delivering the Leading Judgment): By writ of summons filed on January 22, 1992, the first respondent in this appeal [as plaintiff] claimed against the appellant and the second respondent in this appeal [as first and second defendants, respectively] the following reliefs:
(a) An order of court nullifying the purported approval allegedly given to the wrongful nomination of Prince Sunday Owolabi Ajiboye by the Military Governor of Ondo State on or about the 12th December, 1991 pursuant to which the 2nd Defendant was wrongfully installed on 21st December, 1991 as the Onisan of Isan Ekiti.”
(b) An order of court nullifying the purported installation of the 2nd defendant as the Onisan of Isan Ekiti by the 1st Defendant.”
(c) An order of court declaring that the 2nd Defendant being an ex-convict in charge No. MKL/120C/86 convicted for the offences of forgery and giving false information by the court on 11th June, 1986 is not qualified to be made an Oba and or a traditional.
(d) Order of perpetual injunction restraining Defendant from parading himself as the Onisan of Isan Ekiti.
(e) Declaration that Section 7 of the Chief (sic) (Amendment) Edict no 4 of 1991 which Edict was promulgated by the Governor of Ondo State and became effective retrospectively on 3rd January 1984 is illegal, unlawful, unconstitutional, null and void ultra vires and of no effect whatsoever.
Pursuant to the applicable rules of court, pleadings were filed and exchanged. The first defendant [now appellant] filed a preliminary objection contesting the competence of the action. The principal plank of the objection was that a condition to the commencement of the suit was not complied with. The High Court [hereinafter referred to as the lower” court] dismissed the objection. Dissatisfied, the said first defendant appealed against the ruling.
Five issues were concreted from the grounds of appeal for the determination of this court. They were couched thus:
(i) Whether or not the lower court was right when he (sic) held that ‘the above provision seems an alternative to taking legal action, but certainly, not a condition precedent to challenging an executive decision in court or whether or not the 1st Respondent has the opportunity to protest to the executive council as a condition precedent to filing this suit’ (GROUND 9).
ii. Whether or not the 1st Respondent has the obligation to protest to the executive Council as a condition precedent to filing this action; (GROUND 9).
iii. Whether or not the lower court was right when he (sic) held that an edict (sic) signed by the Military governor of Ondo State on the 23rd day of December, 1991 could not have been brought to the notice of the 1st Respondent before he filed his suit on the 22nd day of January, 1992; (GROUNDS 6, 7 & 8).
iv. Whether or not the trial Chief Judge was right when he waived the mandatory provisions of Sections 1 and 2 of the Approval of Appointment of an Oba and presentation of Instrument of Appointment and Staff of Office Edict, 1991 when he held that “I refused the prayer of the Defendants that the claim be dismissed or struck out but order the Plaintiff to comply with the provision of the Edict requesting him to make deposit” (GROUNDS 3 & 5); and
v. Whether or not the payment of Ten thousand Naira Only (N10,000.00) as provided for under Section 2 of the Approval of Appointment of an Oba and Presentation of Instrument of Appointment and Staff of Office Court; 1991 is a condition which must be met before the institution of this suit at the lower court (GROUNDS 2 & 4).
The first respondent [who was the plaintiff at the lower court] greeted the appeal with a preliminary objection on the following grounds:
(1) That the Notice of Appeal filed by the appellant runs contrary to the provisions of the Court of Appeal, 2007;
(2) That the grounds upon which the Notice was filed were formulated and couched contrary to the rules of this court.
(3) That the particulars in support of the grounds are incompetent been argumentative, vague, ambiguous and in some instances have no relationship with the grounds
(4) The issues for determination as formulated and couched are incompetent.
Before proceeding with this judgment, we intend to dispose of the objection first.
PRELIMINARY OBJECTION
Arguments in support of the preliminary objection spanned pages 4-9 (paragraphs 3.01-4.14) of the first respondent’s Brief of argument. In arguing the said objection, learned counsel for the first respondent, adopted and relied on the above paragraphs of the Brief. In the main, counsel’s submissions may be summed up as shown hereunder.
In the first place, it was contended that to have a valid and competent appeal, there must have been a duly filed Notice of Appeal. Above all, such a Notice of Appeal must contain valid ground(s) of appeal stating the part of decision of the lower court complained of, citing Order 6 Rule 2 of the rules of this court.
Counsel maintained that for a ground of appeal to be competent and valid it must not be vague, general, argumentative or narrative, citing Order 6 Rules 2(1), 2, 3 and 4 of the Rules.
He contended that the rules of this Court recognize only three categories of grounds of appeal, namely,
(i) A ground of appeal that complains of misdirection
(ii) A ground of appeal that complains of error in law and
(iii) Omnibus or general ground of appeal, Oge v. Ede (1995) 3 NWLR (Pt.358) 564, 577 – 578.
What is more, a competent Ground is one that is concise and relates to the category or heading it is drafted to meet, citing Ogoloma v Int. Tech and Safety Co. Ltd. (1993) 2 NWLR (pt 275) 357, 358; Abdulahi v Oba (1998) 6 NWLR (pt. 554) 420, 427.
Counsel also cited Adeleke v Asani (1994) 1 NWLR (pt. 322) 356, 549 as authority for the proposition that any Ground that is vague by not stating the particulars and nature of error alleged must fail.
Furthermore, he contended that a Ground of appeal or any of its particulars must not be argumentative or narrative, Ulegbe v. MILAD BENUE (2000) 13 WRN 126, 139.
He observed that, in this appeal, Grounds 1, 2, and 3 are incompetent for being non-specific, vague, ambiguous, argumentative and for not attacking any specific findings or ratio decidendi. They, also, do not refer to any particular place or page of the judgment purportedly appealed against.
He noted that Grounds 1, 2 and 3 had what they described as particulars (sic), each of these particulars (sic) is a conclusive legal argument.
He pointed out that Ground 2, contrary to the rules of this court and plethora of judicial authorities, is without accompanying particular(s).
Additionally, Ground 2 is a complaint against the trial learned judge “in not holding” and not against any decision already taken.
He dismissed Ground 4 as being incompetent and invalid for being vague, ambiguous and non descriptive. The particular in support of Ground 4 is also argumentative and narrative.
In his view, Grounds 5 and 7 are vague, ambiguous, at large and non-descriptive. They, also, fail to relate to any specific findings or ratio decidendi of the judgment appealed against.
The two particulars in support of Ground 7 are conclusive legal arguments. Grounds 6 and 8 are bad for being repetitive of each other, Jimoh v Starco Nig Ltd (1998) 7 NWLR (pt 558) 523, 531.
While the first particular, in support of Ground 6, is a legal argument, the second particular from the portion of the judgment quoted above has no relevance or relationship with the Ground 6.
Ground 9, as formulated and couched, is vague, ambivalent, ambiguous and argumentative. The ground does not attack or relate to any specific finding of fact or ratio decidendi of the judgment appealed against. No specific place, portion or page of the lower court judgment appealed is referred to.
Particular 1, in support of the ground, is narrative. While the other three particulars, as framed and couched, are conclusive legal arguments.
Next, counsel contended that all the issues for determination formulated from the Grounds of Appeal are incompetent and invalid.
He explained that an issue for determination is a proposition of law or fact or both which is cogent and weighty in nature such that its resolution, one way or the other, will determine the essence of the appeal.
What is more, for an issue for determination to be competent and valid, it must arise from or be based on a ground of appeal.
Even then, in arguing an appeal, it is the issues for determination properly raised that will be argued and considered and not the grounds of appeal, Ozims v Anoruo (1991) 3 NWLR (pt. 181) 571, 579.
On the above premise, he concluded that where there are no valid and competent issues for determination, properly and competently formulated from a ground or combination of grounds of appeal, the ground of appeal is deemed abandoned and will fail.
He observed that, in the instant case, the appellant formulated five issues for determination. However, all the issues are bad, incompetent and invalid on the ground, inter alia, of proliferation, Kalu v. Odili (1992) 5 NWLR (Pt. 240) 130, 167.
Counsel contended that issues one and two, as formulated and couched by the appellant and from the appellant’s showing, are two distinct proliferated issues distilled from one ground of appeal, namely, ground 9. He took the view that they are most incompetent and liable to be struck out, NNPC v A.I.C (2001) 49 WRN 140, 151-152; Ugo v Obiekwe and Anor (1989) 1 NWLR (pt. 99) 566, 580. He submitted that issues one and two are incompetent.
He, finally, noted that issues 3, 4 and 5 are repetitive and proliferated and are distilled from the failed repeated grounds 6 and 8. From there, counsel moved to the consequence of incompetent and invalid Grounds of appeal and issues for determination
He argued that where the Grounds of Appeal fail to conform to the rules of this Court and all well-established practice of formulating and couching Grounds of Appeal, the offensive Grounds are liable to be struck out.
He conceded that an appeal can be heard and decided on one Ground of appeal properly and validly formulated and couched, but in this instant case, none of the grounds can pass the test set down by this court. Grounds of Appeal which do not conform with the rules of this Court are liable to be struck out, Aor v Nimba (1994) 1 NWLR (pt. 320) 368, 373. Lastly, counsel turned to what he termed the uncharitable use of language against the learned trial judge
He observed that the appellant’s counsel, in his brief, [at page 10 paragraph 4.3] described the “reasoning” of the learned trial judge as “unreasonable” “unwarranted and without legal backing,” citing The Black’s Law Dictionary (seventh edition).
In his view, the description of the learned trial judge’s findings or reasoning as above is intemperate and derisive and totally uncalled for and should be expunged Osayomi v. State (2007) 1 NWLR (Pt. 1015) 357. 370. He urged the court to dismiss this appeal on the above grounds.
Adaramola’s response may be summed up thus: since no issue was formulated from ground one, it is deemed abandoned. He, indeed, invited the court to strike out that ground. He, equally, conceded that grounds 2, 3 and 8 of the Grounds of Appeal are incompetent. He, also, urged the court to strike them out. In addition, he sought the leave of court to withdraw the second issue.
In his view, however, the withdrawal of that issue will not affect the argument on the first issue. He maintained that the court is not even bound by the issues which the parties formulated.
On the consequence of formulating two or more issues out of one ground of appeal, he argued that the consequence is not the dismissal of the ground or the issues. Rather than entering an order for the dismissal of the said issue, the court can strike out one issue and make use of the second one.
Learned counsel contended that Ground 9 had no defect at all. He took the view that the appellant did not use any foul language on the lower court.
Now, since the appellant made certain concessions, it would seem tidier to dispose of the matters relating to them before embarking on any consideration of the merit of the preliminary objection. As shown above, the appellants conceded to the incompetence of Grounds 1, 2, 3 and 8 of the Grounds of Appeal. Adaramola, indeed, urged the court to strike them out. We shall oblige his request. Accordingly, we hereby enter an order striking out Grounds 1, 2, 3 and 8 (supra).
In effect, the only outstanding Grounds to which the objection relates are Grounds 4, 5, 6,7 and 9.”With regard to these grounds, Chief Adeniyi’s main objections were that: while the said grounds 4, 5, 6, 7 and 9 are vague, ambiguous and non-descriptive, the particulars of ground 4 are argumentative and narrative while two particulars in support of ground 7 are conclusive legal arguments. According to him, grounds 6 and 8 are bad for being repetitive. It may not be necessary to set out the impugned grounds and their particulars since the issues concerning them can conveniently be disposed of without the tedium of reproducing them.
With due respect, the objections of the learned senior counsel rest on four principal misconceptions: in the first place, it would appear that he glossed over the radical change which the evolution of the Brief system introduced in our adjudicatory procedure. Unlike the pristine practice [the pre-Brief System era] where appeals were argued on grounds of appeal, today, appeals are argued on issues distilled from the grounds of appeal themselves. In effect, where the grouse of the objector is not on the origin of the issues, namely, that the issues do not flow from the grounds of appeal, any complaint about the form of the ground will merely be a complaint based on technicality and will be discountenanced, see, Military Administrator of Benue State v Ulegede (2001) 51 WRN 1, 15-16.
Again, the objection betrayed a regrettable misconception of the Idison d’detre for the evolution of the rules of court relating to the formulation of issues. Put in very plain terms, such rules governing the formulation of Grounds of Appeal are designed to ensure fairness to the respondent: fairness by giving sufficient notice and information to such a respondent of the precise nature of the complaint or grievance of the appellant: a grievance which foreshadows or pre-figures the issues that are likely to arise in the actual hearing of the appeal, Aderounmu v Olowu (2000) 4 NWLR (pt 652) 253. That explains the requirement that the appellant shall set forth concisely his grounds which should not be vague or general in terms and must disclose a reasonable ground of appeal, Hombe v Hueze (2001) 12 WRN 64; (2001) 4 NWLR(pt.703) 372.
As a corollary to the rule designed to vouch safe fairness to the respondent, the courts have evolved another objective approach, namely, that the application of such rules should not be reduced to a matter of mere technicality: technicality in which the court merely looks at the form rather than the substance, see per Achike JSC in Hambe v Hueze (supra) 389- 391;-see, also, per Ayoola JSC in Aderounmu and Anor v Olowu (2000) 2 SCNJ 180; (2000) 4 NWLR (pt 652) 253. The result is that any ground that satisfies the purpose as shown above, will not be struck out notwithstanding that it did not strictly conform to a particular form, Hombe v Hueze (supra).
What is more, the objection elided any consideration of the major shift in emphasis from the impregnable reign of technicalities to the anxious concern of the courts to attain substantial justice. It is this concern that dictated the current trend: a trend that simply dictates that the purpose of a ground of appeal is to ensure that the respondent is not taken by surprise, see, per Achike JSC in Hambe v Hueze (supra) 386. Hence, once a ground clearly states what the appellant is complaining about and there is compliance with the rules of court, the court cannot describe a ground as bad, and therefore, incompetent, Aderounmu v. Olowu (2000) 4 NWLR (Pt. 625) 253; Hambe v. Hueze (supra).
It is this trend that underscores the consequence of the current approach to the effect that where the respondent is not misled and no miscarriage of justice has been alleged or suffered, a ground of appeal will not be struck out, Military Administrator of Benue State v Ulegede (supra). This, equally, underlies the new trend to-the-effect that even where a court finds that the particulars of a ground of appeal are argumentative or narrative, it will treat any complaint about its form as a mere technicality which is un-becoming of learned counsel to pursue up to the appellate courts except where the parties to the appeal and the court are misled or where retaining them will occasion a miscarriage of justice, Military Administrator of Benue State v Ulegede (supra)
It is evident that what prompted this new judicial attitude is the resolve of the courts to pursue the concern of justice as the overriding force or the underlying philosophy of all their decisions, E.E. C.C.N. v A.G of Kaduna State (1987) 2 NWLR (pt 57) 381.
With regard to the objection on the proliferation of issues one and two from ground 9, it suffices to observe that the appellant has withdrawn the second issue. Although appellate courts discourage the practice of proliferating issues, consistent with this current attitude, such defects may be overlooked in the court’s quest to do substantial justice, Otaru and Sons Ltd v Idris (1999) 6 NWLR (pt 606) 330, 338-339; Obiora v Osele (1989) NWLR (pt 97) 279, 300; Mankanjuola v Balogun (1989) 3 NWLR (pt 108) 192, 205.
Against this background, I hold that the objections are unfounded. I hereby enter an order dismissing them.
The complaint about the abuse of language is neither well-founded nor well-taken. I have read paragraph 4.3 [page 10 of the appellant’s brief] over and over and I do not see how the language employed there can be described as uncharitable, intemperate or derisive. True, indeed, the resort to insulting, abusive or derogatory language in briefs of argument has been deprecated, see, per Tobi JSC in Abubakar v Yar’Adua (2009) All FWLR (pt 459) 1, 157; also, C.C. Nweze, Redefining Advocacy in Contemporary Legal Practice: A judicial Perspective (Lagos: Nigerian Institute of Advanced Legal Studies, 2009) 30- 31. However, our appellate courts are yet to develop the habit of gagging counsel’s freedom to greet a lower court’s reasoning with firm disapprobation. They, only, insist that the effective use of words and politeness of language should be the hallmarks of good advocacy, Momodu v State (2008) All FWLR (pt 447) 1, 157-159.
THE MAIN APPEAL
As already indicated above, what prompted this appeal was the decision of the lower court: a decision which dismissed the appellant’s preliminary objection challenging the court’s jurisdiction to entertain the suit. In effect, the substantive suit is still pending: pending since 1994!
Against, this background; I take the view that, in judgments such as this, conscious efforts must be made to avoid expressing opinions that may be prejudicial to any of the matters that would fall for the determination of the lower court if and when, eventually, the substantive suit is heard before it. This must be so for in such situations such as the one we are confronted with in this appeal, a court of appeal must be mindful of the risk of pre-judging the merits of the main case. To do otherwise might, unwittingly, prejudice the outcome of the issues involved in the main suit which are yet to addressed, see, Adamu v AG, Nasarawa State (2007) 6 NWLR (pt 1031) 485; Adewale v Gov Ekiti State (2007) 2 NWLR (pt 1019) 634. In effect, what calls for determination in this appeal falls within-a very compass: narrow compass because this court must be wary not to be drawn into other arguments canvassed in this appeal which, if broached in this judgment, may be prejudicial to the substantive questions yet to be agitated.
It is against this background that I have had to take a hard look at the above surviving grounds of appeal and the outstanding issues. Upon my painstaking perusal of the said grounds, I take the humble view that this appeal can conveniently be disposed of on issue five alone: that is, the issue which deals with the payment of deposit as a condition for the commencement of this kind of suit.
Accordingly, in the exercise of the undoubted prerogative of this court to modify or re-formulate issues for a more judicious determination of the narrow question which this court should be concerned with, Unity Bank Plc v Bouari (2008) 7 NWLR (pt 1086) 372, 401; Agbareh v Mimra (2008) 2 NWLR (pt 107) 378, 410; Nwana v FCDA (2004) 13 NWLR (pt 889) 128; D.P.C.C. Ltd v. B.P.C. Ltd (2008) 4 NWLR (pt 1077) 376, 418-419; Aduku v Adejoh (1994) 5 NWLR (pt346 582; Ikegwuoha v Ohawuchi (1996) 3 NWLR (pt435) 146; Dada v Dosumu (2006) 18 NWLR (pt 1010) 134, I shall express the sole issue for the determination of this appeal against the interlocutory decision of the lower court thus:
Whether or not the payment of monetary deposit is a condition for the institution of this suit
Gbemiga Adaramola, learned DDPP, for the first respondent, on this question, submitted that the payment of the sum of ten thousand naira (N10,000.00) by the first respondent before the institution of this matter at the lower court was a condition precedent to the institution of this suit. In his view, failure to pay the said deposit rendered the suit incompetent before the lower court.
He contended that section 2(1)(b) of the Approval of Appointment of an Oba and Presentation of Instrument of Appointment and Staff of Office Edict, 1991 [the applicable law in the instant case], which made provisions for the payment of money deposit before a litigant can institute an action to challenge the appointment of a recognized chief, does not infringe on the provisions of the Constitution and is not punitive.
He, finally, submitted that section 2(2) (supra) did not give the lower court the discretionary power to waive the time of payment of the deposit by the first respondent, since the payment of the deposit was mandatory as at the time of filing the writ of summons/Statement of Claim before the lower court.
He observed that the first respondent, without due regard to the provisions of the said law, filed his suit on January 22, 1992, without making the deposit as required by the law as at November, 30 1994 when the court delivered its ruling.
The learned Deputy Director of Public Prosecutions submitted that the provision of the above law is mandatory and failure to comply with it renders the suit incompetent before the lower court.
He maintained that the duty of the lower court was only to interpret the law as it is since it is unambiguous and more so, the first respondent did not pray for such a waiver and neither of the parties was given the opportunity to address the court on the issue of waiver before the said court waived the time of payment.
Learned counsel for the first respondent addressed this issue in paragraphs 7.01 -7.06 [pages 16 -18~of the first respondent’s brief]. He set out what he called the peculiar facts of this case thus:
(i) The cause of action can be traced to 1987 December, 10th and 10th December, 1991 when the second respondent was appointed and the appointment approved respectively as an Oba.
(ii) The appellant signed the Chief’s Law in contention on December 23, 1991 – fourteen days after the purported final approval of the second respondent’s appointment as an Oba.
(iii) The first respondent, oblivious of the said Chiefs’ Law took out his writ of summon and his statement of claim on wherein he is challenging the constitutionality, legality and validity of the said Chief Law on January 22, 1992
(iv) The appellant also oblivious of the existence of the said Chiefs’ Law entered an unconditional appearance on January 22, 1992, that is the same day the first respondent took out the writ of summon.
(i) The first respondent, upon becoming aware of the existence of the said Chief’s Law, challenged the constitutionality, legality and validity of the said Law, as amended, in his Statement of Claim of March, 1992.
(ii) The first respondent’s counsel, speaking from the Bar, stated, matter-of factly, that the appellant was not aware of the existence of the Chiefs Law, which came into being after the final approval of the second respondent as an Oba, being the cause of action. This fact was not controverted.
He submitted that, in the light of the above peculiar circumstances of the instant case, the findings of the lower court, were in accord with justice, equity and fair hearing.
He submitted that the age-long legal maxim “ignorance of the law is not an excuse”, although a strict legal maxim, would not do justice and equity to the instant case.
In his view, the maxim is not applicable to civil facts and proceedings, but strictly to knowledge of crimes and criminal proceedings, citing Black’s Law Dictionary (seventh edition) 751; also, David Haymay, Words and Phrases Legally Defined (fourth edition) VOL. A-K 1127.
He maintained that a party is not expected to comply with a law, the existence of which he is not aware of particularly in the instant case when the said law was not in existence at the time of the accrual of cause of action the said law applies, Adedolapo v Military Administrator, Ondo State (2005) 17 NWLR (pt.955) 487.
In passing, I must now note that Rotimi Adabembe, of counsel for the second respondent, had nothing to urge either in favour or against this appeal.
With profound respect to the first respondent’s counsel, the question involved in this issue has since been laid to rest. I, entirely, agree with the learned Deputy Director of Public Prosecutions, Gbemiga Adaramola, that the Supreme Court has had the occasion to make pronouncements on the question of payment of money deposit as condition for instituting suits challenging the appointment of persons in recognized chieftaincy stools.
In Atolagbe and Anor v Awuni and Ors (1997) 7 KLR (pt 53) 1348; (1997) 9 NWLR (pt 522) 536, Uwais CJN (as he then was), in upholding the validity of such laws, first explained that:
It is common ground that by providing that a non-refundable sum…should be deposited by a prospective plaintiff in a chieftaincy dispute in which the Government [ ] or any of its agencies is intended to be a party, [the law] has imposed a condition. All the parties in presenting their cases and also the courts below have regarded the condition as ‘condition precedent’ which is a term of art, It is clear that there is a difference between ‘condition’ and ‘condition precedent’…. A careful reading of [the law] convinces me that the provisions thereof are not saving that the right to sue does not exist because they talk of a person that intends to challenge the validity of an appointment’ and ‘a person that has been aggrieved’, The import of [the provisions…] is that a right to sue exists but that the exercise of the right is dependent on the payment of a nonrefundable deposit…. [see page 1362]
The apex court discountenanced the view that the law was punitive.
Listen to Uwais CJN (as he then was):
It has been contended that the payment of the fee is punitive and therefore constitutes an infraction on the provisions of section 6 subsection (6) (b) of the [Constitution] which provides unimpeded access to court. I am unable to accept this argument. In our system of court administration, it is not possible for a litigant to walk into our court to institute a suit without paying fees. Such fees are being charged for the purpose of raising funds for public revenue. They are not being charged to punish the litigants for deciding to take advantage of the [above] provisions…. The fact that the fees payable are increased in certain categories of cases does not render the charging of the increased fees unconstitutional. It is not within the province of the courts to conjecture as to the reasons why the higher fees are being charged. The function of the court is to interpret the law but not to bring to the bear extrinsic reasons as to why the law I made.
[page 1364]
The distinguished CJN approvingly adopted the views of Iguh JSC in Obaba v Military Governor of Kwara State (1994) 4 NWLR (pt 336) 26, 46 that the “payment of the [said fee] merely conferred the appellants with access to the court for the purpose of the determination of their claims in accordance with the laws of the land and no more….” See, also, Akano v Ilorin Emirate Council (2001) FWLR (pt 42) 59.
In my humble view, this settles the question and also settles the narrow issue which, as shown above, we had taken the liberty to reformulate, Unity Bank Plc v Bouari (2008) 7 NWLR (pt 1086) 372, 401; Agbareh v Mimra (2008) so as to foreclose any possibility of prejudicing the outcome of matters yet to be ventilated and agitated at the hearing. In all, the lower court was wrong to have waived the said condition. This appeal is hereby allowed. I hereby set aside the decision of the lower court.
HON JUSTICE SOTONYE DENTON WEST, JCA: I entirely agree with the reasoning and conclusion of my learned brother NWEZE JCA, in this Judgment. However I would wish by way of emphasis to dwell on a matter arising from the Judgment namely “the complaint by the respondent’s counsel in his brief at page 10 paragraph (4.3) describing the reasoning of the learned trial Judge as “unreasonable, unwarranted and without legal backing”, citing the Black’s Law Dictionary (seventh edition).
“In his view, the description of the learned trial Judge’s finding or reasoning as above is intemperate and derisive and totally uncalled for and should be expunged, Osayomi vs The state (2007) 1 NWLR (pt 1015) 352, 370:
‘Insulting language does not improve the advocacy, rather it destroys it. Insulting language tell so much about the character of a counsel. Judges are not on the bench to be insulted by counsel rather they should be respected. It is scandalous in the extreme and an unjustifiable manner to ridicule the judiciary’ He urged the Court to dismiss the appeal on the above ground”.
Fortunately, the learned counsel for the appellant being accused of the use of insulting language as in paragraph 4.3 of the appellant’s brief by the respondent’s counsel of being rude to the Judge is not true, as he merely said in his brief of argument. Thus:
Thus “It is humbly submitted that ignorance of the law has no excuse. The reasoning of the learned trial Judge, with utmost due respect, is unreasonable, unwarranted and without any legal backing. In fact, there was no evidence before the trial judge that the Edict had not been printed as at the time of filling this suit but there was evidence that the Edict was signed by the Military Governor on the 23rd of December, 1991”.
I find it necessary to comment on this because it is now common to find that counsel or sometimes the general public indulges in very unfavourable comments about the Judgment and the Judge.
This point in my humble view is very cardinal and must be deprecated. It is not very proper for counsel to attack the person of a Judge. I have always cautioned that because of the essence and purity in the administration of justice a counsel should be courteous to the court. Indeed this encompasses all and sundry, counsel, the litigating public, court of co-ordinate jurisdiction, and the public at large. We must learn not to disparage the court or its personnel except for gross misconduct on the part of the judge or its personnel.
The dignity of the court is absolutely sacrosanct and therein lies the ultimate pride of the legal profession, and so we must hesitate and resist the temptation to rebuke or insult a Judge in the conduct of a case. Even after a judgment is delivered a disappointed counsel or parties need not rain abuses or comment badly of the Judge or his judgment after its delivery. Counsel, parties or public at large can only criticize the judgement, tear it into pieces, complain if there is absolute corruption that can be proved against the Judge, but not to attack the Judge as a person. See cases of Anani vs The king (1951) 13 WACA 196, and In Re Edewor (1968) 1 All NLR 226.
A counsel is a minister in the temple of justice and as an officer of the court, a counsel has a duty to assist the court rather than mislead it. See case of Pere Roberto (Nig) Ltd vs Ani (2009) 13 NWLR page 522 @ 534-535.
Per Adamu JCA, thus “It is pertinent to chastise the appellant’s counsel for his misrepresentation and misleading gesture to this court on the issue. As minister in the temple of justice and an officer of the court, he has the duty to assist rather than to mislead the court as he did in his brief in the present interlocutory appeal. Bawa vs Balarabe (1999) 6 NWLR (pt.605) 61, Kwaptoe vs Tsenyi (1999) 4 NWLR (pt 600) 571”
No matter how annoyed or indeed how unpleasant a judgment may be to a losing party, counsel or the litigating parties must not walk out on the court. Finally counsel should desist from accusing the court in open court for corruption as it undermines the integrity of the court, unless same has been proved.
From the foregoing and more particularly the views of my learned brother NWEZE JCA, as contained in the lead judgment, I also hereby allow the appeal and accordingly set aside the decision of the Lower Court.
DALHATU ADAMU (OFR), J.C.A
The appeal is hereby allowed. The decision of the lower court is hereby set aside. I agree with the judgment of my Lord C. C. Nweze, J.C.A.
Appearances
Gbemiga Adaramola, DDPP, Ekiti StateFor Appellant
AND
Chief A. A. Adeniyi;
Rotimi AdabembeFor Respondent
