MR. JOHN AYOADE v. SPRING BANK PLC & ANOR
(2013)LCN/6113(CA)
In The Court of Appeal of Nigeria
On Friday, the 19th day of April, 2013
CA/K/297/2006
RATIO
COURT: JUDGMENT OF COURT: JUDGMENT OF A COURT MUST BE BASED ON THE LAW AND EVIDENCE PLACED BEFORE IT
“A Court decision must be founded on law, and evidence before the court, and in keeping with sound legal principles and tradition. It is not at the whims and caprices of the judge, as per the waves of his brain and feeling! See the case of OGOLO v. OGOLO (Supra).” Per MBABA,J.C.A.
“A court should not set up for parties a case different from the one set up by the parties in the pleadings – Skye Bank Plc v. Akinpelu (2010) 9 NWLR (Pt 1198) 179 and Baliol (Nig) Ltd. v. Navcon (Nig) Ltd (2010) 16 NWLR (Pt.1220) 619. A court must confine its judgment to the determination of the issues raised on the pleadings – First Bank of Nigeria Plc v. Olaleye (2013) 1 NWLR (Pt 1334) 102.” Per ABIRU, J.C.A.
“The law is also settled that a judge cannot sit on appeal over his earlier decision and take a decision contrary to what he earlier did, as he (judge) becomes functus officio over the previous suit, the moment he delivers the judgment. It is for the appellate court to evaluate the decision of the trial court, on the same being appealed against, to come up with finding whether the trial court was right or wrong. In the case of Wimpey Ltd v. Balogun (1986) 3 NWLR (Pt 23) 324 at 388 it was held: “The law of course, is clear that where a judge has delivered his final judgment in a suit he becomes functus officio with respect to the suit. Except for making the ancillary orders such as orders for stay of execution of judgment or for payment of the judgment debt by installments… Once a judge has delivered a final judgment in a matter… he ceases to be seised of that matter and cannot alter or reopen it in an application made under a statute by one of the parties” See also Edem v. Akamkpa Local Government (2000) 1 NWLR (Pt. 651) 70.” Per MBABA, J.C.A.
PARTY: NECESSARY PARTY: WHETHER A JUDGMENT WILL AFFECT A PERSON WHO WAS NOT MADE A NECESSARY PARTY TO A SUIT
“One of the cardinal requirements of law, to imbue a Court which jurisdiction to hear a case, is that the parties/persons to be affected by its decision must be duly summoned/served with the processes of Court and given opportunities to be heard/defend themselves. That is an inalienable Constitutional right of every person. See section 36 (1)(3)(6) of the 1999 Constitution, as amended. See the case of SLB CONSORTIUM LTD v. NNPC (2011) 9 NWLR (Pt. 1252) 317; BRITISH AMERICAN TOBACCO NIG LTD v. INTERNATIONAL TOBACCO CO. PLC (2012) 39 WRN 60; (2013) 2 NWLR (Pt. 1339) 3493. Where this court held thus, on necessary parties to a suit and effect of not joining them: “Necessary parties are those who are not only interested in the subject matter of the proceeding but also who, in their absence, the proceedings could not be fairly dealt with. In other words, the question to be settled in the action between the parties cannot be properly settled unless they are parties to the action instituted by the plaintiff.” (GREEN v. GREEN (1987) 3 NWLR (Pt. 61) 480 MOBILE OIL PLC v. DENR. LTD (2004) 1 NWLR (Pt. 853) 142; LAWAL v. PGP (NIG) LTD (2002) 17 NWLR (Pt. 742) 393; OBASANJO v. YUSUF (2004) 9 NWLR (Pt. 877) 144. “Where the resolution of a crucial issue in an action revolves around a person who is not a party to the suit, then the action is fatally defective. This is because the parties in the suit could not have been properly constituted. Thus, any one whose presence is crucial and fundamental to be resolution of a matter before the Court must be made a party to the proceedings.”LAWAL v. PGP NIG. LTD. (Supra)” Per MBABA, J.C.A.
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
ITA G. MBABA Justice of The Court of Appeal of Nigeria
HABEEB A. O. ABIRU Justice of The Court of Appeal of Nigeria
Between
MR. JOHN AYOADE Appellant(s)
AND
1. SPRING BANK PLC
2. ALH. ALIYU MUSA Respondent(s)
ITA G. MBABA, J.C.A. (Delivering the leading Judgment): A brief facts of the case at the lower court shows that, Appellant, as the plaintiff in the suit No.K/103/95, filed on 11/2/1995, claimed as follows (against the original two Defendants – OWEMA BANK NIG PLC and MINISTRY OF LANDS & REGIONAL PLANNING KANO):
1. That the purported sale of the landed property covered by Certificate of Occupancy No.LKN/CON/RES/88/450 be set aside on the grounds of fraud collusion and for ridiculously undervalued.
2. That the Ministry of Lands and Regional Planning be restrained from dealing, altering, changing or in any form tampering with the records now with it in relation to the said Certificate of Occupancy.
3. The Plaintiff also claims against the 1st Defendant for embarrassment caused to the Plaintiff by the purported sale of his landed property by the 1st Defendant (see page 12 of the Records of Appeal)
The above reliefs were amended in the Amended Statement of claim as follows:
a) “Declaration against the Defendants jointly and severally that there was never a sale of the landed property covered by the Certificate of Occupancy No.LKN/CON/RES/88/450 by 1st Defendant to the second defence (sic Defendant) or to anybody at all.
b) Declaration that if the said house was sold at all, which is denied, such sale was improper, illegal and fraudulent and therefore void.” See page 12 of the Records.
(The 2nd Appellant, who was 3rd Defendant at lower court had applied to be joined as Defendant and the application was granted on 15/11/95).
At the end of trial, in a considered decision the learned trial judge, ADAMU J. held on 16/12/99 for the plaintiff, as follows:
“1. That there was never any valid sale of the landed property of the plaintiff covered by the Certificate of Occupancy.
2. That any sale of the said house is improper, illegal, fraudulent and therefore, null and void. It is hereby set aside.
3. That the 3rd Defendant is also to be paid all his expenses/payment for the purchase of house estimated at N200,000.00 (Two hundred thousand Naira) jointly and severally by the plaintiff and 1st Defendant within 3 months from today.
4. That the 3rd Defendant is also to be paid all his expenses/registration of the land estimated to be N90,000.00 (Ninety thousand Naira) jointly and severally by the plaintiff and the 1st Defendant 3 months from today.
5. That the plaintiff is to pay to the Bank all his indebtedness fully calculated and audited, within 3 months from being informed of the amount and the 1st Defendant Bank will release the Certificate of Occupancy back to him.” (See pages 119 to 120 of the Records)
On 6/6/2003, the Bank (OMEGA BANK PLC) applied for issuance of a writ of execution against the immovable property of the plaintiff (Appellant herein)-as debtor- covered by the statutory Certificate of Occupancy No.LKN/CON/RES/88/450 and located at No.540 Bachirawa Quarters, Bachirawa Uugogo Local Government of Kaduna. Applicant also sought an order compelling the occupants of the property to vacate the premises immediately, failing which forcefully, and delivery of vacant possession to the purchaser.
The application was opposed by the Appellant (as respondent therein) who had filed a counter affidavit and a further counter affidavit, with annexures, to that effect. In his ruling the same learned trial Judge, on 14/7/2005, held as follows:
“1. The court will have to hold that the Bank/Judgment Creditor has no right to charge Bank rates of interest on the amount given as Judgment Debtor by the Court.
1. That the amount of interest to be charged on the judgment debt is 10% per annum and this is what is supposed to be charged by the Bank.
2. That the judgment debtor on the other hand has no right to remain in the landed property which had already been sold by the Bank to a 3rd party and also refuse (sic) to settle the indebtedness.
3. That by settling the entire debt as ordered by the court in 1999 is the only way the judgment debtor can salvage the property other (otherwise) the Banks right to sell is valid and ever subsisting.
4. That since the judgment debtor failed to utilize the opportunity given to him since December, 1999 and the purchaser’s money had been hold (sic) to the Bank which if it will attract interest for 5? years, the money would have tripled by now this amount (sic) to taking advantage over both the bank and the purchaser.
5. That the court must hold that the judgment debtors HANDS ARE NOT CLEAN and he cannot be granted any EQUITABLE RELIEF.
6. That the judgment debtor is also guilty of delay to comply with the orders of the court for 5? years, will deny him EQUITABLE RELIEF because DELAY DEFEAT (sic) EQUITY.
7. That the judgment debtor having exhibited BAD FAITH worse than the BANK and the PURCHASER he cannot be allowed to complain about BAD FAITH or lack of BONA FIDES anymore.
8. That in the circumstances the previous sale to the PURCHASER will have to be re-instated and reasserted.
9. That in the similar circumstances, the court has decided to grant the orders as prayed by the JUDGMENT CREDITOR’S Counsel and the court orders that a WRIT OF EXECUTION shall be issued against the IMMOVABLE PROPERTY of the judgment debtor John Ayoade covered by Certificate of Occupancy No.LKN/CON/RES/88/450 located at No.540 (Sic 40) Bachirawa Quarters, Kano Ugogo Local Government, Kano.
10. That any occupant to the property is required to vacate the premises or deliver possession to the Bank Judgment Creditor with immediate effect or failing which the Bailiffs of this court will eject them and they will (sic) made to pay the cost of execution.
11. That the issues of remaining balance of the indebtedness of the judgment debtor will be calculated to remove all interest charges on Bank rate, and the judgment creditors should consider waiver of all interest as from the date of judgment.” (Emphasis by the Court-See pages 151 and 152 of the Records)
That ruling of 14/07/2005 is the subject matter of this appeal, as per the notice of Appeal, filed on 22/07/2005 (which rather carries 20/07/2005 as the date of the Ruling!). See pages 194 – 200 of the Records.
The notice of Appeal disclosed ten (10) grounds of Appeal. He later filed Amended Notice of appeal dated 22/2/2020 with the leave of this court, and still disclosed 10 grounds of appeal.
Appellant filed his Brief of argument on 22/12/2006, which was later amended and further further Amended and filed on 23/2/12 and deemed duly filed on 6/12/12. And, on being served with the Respondents’ further and further Amended Brief of argument, filed on 5/3/06 (and deemed duly filed on 6/12/12), the Appellant filed a Reply Brief on 10/12/12. Appellant distilled 5 Issues for determination, as follows:
i. Whether the learned trial judge considered all the materials placed before arriving at his decision (Grounds 2 and 3).
ii. Whether the learned trial judge was right when he, suo motu, set aside his own judgment (Grounds 1 and 4).
iii. Whether the learned trial judge was right when he made order affecting persons who are not parties to the proceedings before the court (Ground 7)
iv. Whether the learned trial judge properly evaluated the evidence before the court before arriving at his decision in this case. (Ground 8, 9 and 10)
v. Whether the order for attachment and sale of Appellant/Applicant’s immovable property (i.e. No.540 Bachirawa Quarters, Kano, covered by Certificate of Occupancy No.LKN/CON/RES/88/450) made by the lower court was not incompetent, null and void ab initio, in view of the non-compliance by the Respondents with the mandatory conditions precedent to the issuance of a writ of attachment and sale of immovable property prescribed by Section 43 of the Sheriffs and Civil Process Law, Cap 135 Laws of Kano State, 1991 and Order IV Rule 16 (1 – 3) of the Judgment Enforcement Rules Cap 123 Laws of Northern Nigeria, 1963? (Ground 6).
The Respondent, in his further further Amended Brief of Arguments, raised a preliminary objection which he argued in the Brief (pages 7 to 19), picking fault with the grounds of appeal. The summary of grounds of the preliminary objection was that:
(2) “Grounds 1, 2, 3, 5, 6, 7, 8, 9 and 10 of the Appellants’ Amended Notice of Appeal dated 22nd February 2010 do not raise questions of law alone and are on the contrary, grounds of facts, or at best mixed law and facts
(3) An appeal against the decision of the High court on grounds other than error of law does not lie as of right.
(4) The Appellant did not obtain the leave of either the High court (trial court) or of this honorable court before filing grounds 1 to 10 in his original notice of appeal dated 21st July 2005, nor the amended Notice of Appeal dated 22nd February 2010.”
In the alternative, for the determination of the Appeal, the Respondents formulated 5 issues, namely:
(1) “Whether the learned, trial judge erred in law in considering and evaluating all materials and evidence placed before him in reaching his decision.
(2) Whether the learned, trial judge erred in law in granting reliefs sought by pursuant to the ruling of 20/7/2005.
(3) Whether the learned trial judge was right to reinstate the sale of the mortgage (sic) property in this suit.
(4) Whether the learned trial Judge was right in making consequential orders pursuant to this suit.
(5) Whether the appellant can raise fresh issues on appeal without the leave of court. ”
The alleged preliminary objection has to be considered first, being a threshold issue RABIU v. ADEBAYO (2012) ALL FWLR (Pt.643) 1836.
At the hearing of this appeal on 21/3/2013, when the counsel on behalf of the parties, adopted their Briefs, learned counsel for the Respondent admitted that he did not file a separate Notice of Preliminary objection; that he thought giving the Notice of Objection in the Respondents’ Briefs was enough, especially as he had obtained leave of the Court to file the Respondent Brief.
I think the Respondents were in grave error to have thought that arguing the preliminary objection in the Respondents’ brief, without first of all, filing the Notice of Preliminary Objection as required by law (Order 10 Rule 1 of the Court of Appeal Rules, 2011), was okay. This Court has held, on several occasions that the requirement of Order 10 Rule 1 of the Court of Appeal Rules, 2011 is not satisfied when the Respondent fails to file the Notice preliminary objection. See MOYOSORE v. GOV. KWARA STATE (2012) 5 NWLR (Pt. 1293) 2442 at 269-270.
The Appellant, in its response to the preliminary objection, had taken it on the merits, by saying that it did not need to seek the leave of court to appeal against a final decision of the lower court, as the Ruling, appealed against, was a final decision of Kano High Court. Counsel relied on Section 241 (1) (a) of the 1999 Constitution as amended.
Appellant’s Counsel was right. The Respondents’ Counsel, it appears, greatly misconstrued the provision of the law relating to requirement for leave to argue grounds of facts and of mixed law and facts, as stipulated in Section 242 (1) (2) of the 1999 Constitution, as such legal hurdles do not stand in the way of appeal against a final decision of the High court, sitting at first instance. See Section 241(1) (a) of the 1999 constitution, as amended. See also our decision in the recent case of AGROVET
SINCHO PHAM LTD & ANOR. v. ESTATE OF ENGR. DAHIRU DAWAKI & 11 ORS: CA/K/205/2003, an unreported decision of this court, delivered on 8/2/2013 at 10 thereof.
I must however state that the Appellant’s Counsel did not even have to respond to the alleged preliminary objection, as he did not merit, the same not being competent, having not been formally filed before us with the filing fees paid, to activate the preliminary objection. See the case of GARBA & ORS v. UMMUANI (2012) LPELR 9841 (CA); MAYOSORE v. GOV. KWARA STATE (2012) 5 NWLR (Pt. 1293) 242 at 269 – 270; ESOHO v. ASUQUO (2007) All FWLR (Pt. 359) 1355; BAYERO v. MAINASARA & SONS LTD (2006) 8 NWLA (pt. 982) 391.
I hold that there was no preliminary objection by the Respondent to invoke the powers of the court to consider.
I must also quickly add that, even where a Respondent wrongly originated the notice of preliminary objection, the Appellate Court is still seised with powers to consider any defect apparent on the face of the Notice and Grounds of appeal and on the issues distilled therefrom, and to rule thereon, as the justice of the case may require. See Order 6 Rules (3) (6) of the Court of Appeal Rules, 2011; Garba & Ors v. Ummuani (supra). See also the recent decision of this court in CA/4/219/2010 (Senator Ahmanddamzomo v. Saleh Musa & Anor) (unreported), delivered on 22/3/2013, where it was held that the blunders of the Respondent to raise valid preliminary objection to the hearing of appeal notwithstanding, that the Appellant Court still had the powers to invoke its jurisdiction to consider any defect, apparent on the face of appeal, capable of affecting its competence (pages 7 and 8 thereof).
Arguing the issue one of the Appeal, learned Counsel for the Appellant OLAWOYIN ESQ. said it was obvious from the of the motion for writ of execution by the Respondents at the lower court, that Appellant had failed to comply with the judgment of the lower Court, delivered in December 1999; but that if the lower Court had considered all the evidence placed before it as per the counter affidavit and further & better counter affidavit by the Respondent (now Appellant), the motion would have been refused, because by the counter affidavit and the Bank tellers exhibited, it was showed that Appellant did not fail to comply with the judgment of the court, to pay his indebtedness to 1st Respondent (the Bank); that the law is that court must consider, and evaluate the totality of evidence adduced by the parties. He relied on the case of TOISEI (WA) LTD v. XTOUDOS SERVICES NIG LTD (2002) FWLR (pt 126) 954, to say that the court has a duty to pronounce on all the issues raised or brought by the parties. He also relied on the case of ALHAJI MUNIRAT ODUNTAN ORS v. ALHAJI ABUDU W. AKIBU (2000) 759 (pt. 11) 106; CHIEF OKON OTI v. CHIEF OKON UDOEKPE (2000) 2 SC P. 98 at 117
On the effect of not considering issues and all the relevant material placed before the court, Counsel relied on the GABRIEL IWUOHA & ANOR. v. NIGERIA POSTAL SERVICES LTD. & ANOR. (2003) 8 NWLR (pt.822) 308 at 343 – 344, that we should re appraise the evidence and come to the proper conclusion. He also relied on the case of SOKOTO FURNITURE FACTORI LTD. v. SOCIETE GENERALE BANK (NIG) LTD. (2003) FWLR (pt. 186) 693 at 703 – 704. He urged us to do so and to come to a different conclusion from that of the lower court.
On Issue 2, whether the court was right to grant reliefs not claimed by the parties, Appellant submitted in the negative, saying that the whole reliefs sought by the Respondent never included the following orders made by the trial judge:
“That the judgment debtor on the other hand has no right to remain in the landed property which had already been sold by the Bank to a third party and also refuse to settle the indebtedness. That by settling the entire debt as ordered by the court in 1999 is the only way the judgment debtor can salvage the property other (otherwise) the Bank’s right to sell is valid and ever subsisting. That in the circumstance, the previous sale to the PURCHASER will be reinstated and reasserted.”
Counsel submitted that all the Respondent asked the court to do was an order for issuance of Writ of Execution against the immovable property of the Appellant and for an order compelling the occupants of the properly to vacate the premises immediately.
He submitted that the trial court was therefore making a case for parties different from what the parties made out or was before the court. He relied on the case of LAWANI AILI & ANOR. v. CHIEF LABADAMOST ABASI ALESINLOYE & ORS (2000) 4 SC (Pt.1) 111. He added that the court has no power to give a party a relief not asked for, and he relied on the case of CORNELIUS OLADUNJOYE v. ENG. BAYO AKINTERINWA & ANOR (2000) 4 SC (Pt.1) 19 AT 29; UGO v. OBIEKWE (1989), NWLR (Pt. 99) 514; AWOSILE v. SOTUBO (1992) 5 NWLR (Pt.243) 514; AYANBOYE v.. BAYOGUN (1990) 5 NWLR (Pt. 151) 392. OBA LAWAL IFABIYI v. CHIEF SOLOMON ADENIYI & ORS (2000) 5 SC 31 at 36; MADAM HELEN OBULOR & ANOR v. LINUS WESO OBORO (2001) 4 SC (Pt.1) 77 at 80 – 81; THE INCORPORATED TRUSTEES OF CHRIST THE KING SEVENTH DAY MISSTON v. LIVINUS NJOKU & ORS (2005) ALL FWLR (Pt. 287) 938 AT 948L; CHIEF E. I. IFEADI & ANOR. v. JOHN IOPTOR ATEDZE (1998) 13 NWLR (Pt. 581) 205 AT 232. He urged us to resolve the issue in favour of the Appellant.
Appellant’s Issue 3 was whether the trial judge was right when he suo motu set aside his own judgment. Counsel answered it in the negative and submitted that there was no material placed before the court to warrant that exercise of discretion by the court, especially as there was no application for the court to set aside its earlier decision. He relied on the case of WILLIAMS & ORS v. HOPE RISING VOLUNTARY FUNDS SOCIETY 182 NSCC 36 at 40, on when a court can set aside it previous decision. He added that the trial court had no power to set aside the earlier judgment, and had become functus officio on the matter. He relied on the case of CHRISTOPHER EMORDI & ORS v. AKUNNIA RIGHT KWENTOH & ORS (1996) 2 SCN 134 AT 163; MICHAEL ADEBAYO AGBAJE v. ALHAJI LASISI ADEGUN & ORS (1993) 1 NWLR (PT. 269) 261 AT 272; CHIEF JOSEPH OKON EDEM v. AKAMKPA LOCAL GOVT. (2000) 4 NWLR (pr.651) 70.
On Issue 4, whether the trial court was right in making an order to affect persons who were not parties to the proceeding before the court, Counsel for the Appellant answered in the negative, saying that it was wrong for the trial judge to make an order to affect all the occupants of the property in question, without, first of all, ensuring that they were made parties to the proceeding or that they had notice of the proceedings against them; that it was like shaving a man’s hair in his absence. He relied on the case of ALHAJI MULDASHIRU KOKORO -OWO & ORS v. LAGOS STATE GOVERNMENT & ORS (2001) 5 SC (PT. 11) 50 AT 57.
Counsel added that the occupants of the property were not agents of the Appellant; that they deserved to have been heard before such adverse decision was taken against them. He relied on the case of BRIGHT MOTORS LTD. & ORS v. HONDA MOTORS COMPANY LTD. OF JAPAN & ANOR (1993) 12 NWLR) (PT. 577) 230 AT 249; GREEN v. GREEN (2001) FWLR (PT.76)795 AT 825.
On Issue 5, whether the learned trial judge properly evaluated the evidence before the court, Counsel answered in the negative too. Counsel reproduced the argument he earlier made under issue 1 saying that if the lower court had taken pains to evaluate the evidence before him, he would have come to a different conclusion. He founded on the counter affidavit and further and better counter affidavit filed against the motion. He further submitted that though the judgment of 1999 pegged bank interest at 10%, the 1st Respondent was still using 21% rate of interest against the Appellant, even after the judgment.
He urged us to resolve the issues in Appellant’s favour and to allow the Appeal.
The Respondents’ Counsel CHARLES ASOGWA ESQ (who settled the Respondents’ Further Further Amended Brief) had distilled 5 issues for determination (though he had stated they had 4 issues). Respondents’ Issues 1 to 5 were the same as Appellants’ Issues 1 to 5, except for semantics.
Arguing Issues 1, learned Counsel for the Respondents submitted that the 1st Respondent had done what was expected of it, to enable the Appellant comply with the judgment of the trial court, delivered in 1999, but the Appellant failed to take settle the debt; that the detailed audited sum owed by the Appellant to the 1st Respondent was N977,550.75 as at 31/5/2003; that that included bank interest, legal fees and expenses. Counsel argued that the trial Court had evaluated and considered all materials and evidence placed before it in reaching its decision; that there was no miscarriage of justice or perversion in the proceeding and decision of the court; that the trial court entertained and resolved all the issues placed before it in reaching its decision; that Appellant was aware of the actual amount outstanding against him, having been duly informed in writing by the Bank, 1st Respondent.
On Issue 2, whether the trial court erred on granting the reliefs sought, the Respondents’ counsel reproduced the reliefs claimed in the motion and submitted that the trial judge was right to grant the reliefs (which were not claimed); that the trial court had considered the circumstances surrounding the case, the unwillingness of the plaintiff to discharge his indebtedness after 5? years as well as his disobedience to the order of the Court before holding that the judgment/debtor’s hands were not clean; that he could not be granted equitable relief hence the reinstatement of the previous sale of the mortgage property.
Respondents’ Counsel further argued that the learned trial judge had power and discretion to grant the reliefs he granted, under the omnibus prayer -“any other order(s) as this court may deem fit and proper to make in the circumstances”; that there instatement of the sale of the mortgaged property emanated and flowed naturally from the omnibus prayer, which the court had discretion and power to grant. He relied on Order 47 Rule 1 of the High Court (Civil Procedure) Rules of Kano State 1988. –
“subject to particular rules, the court may in all causes and matters make any order which it considers necessary for doing justice, whether such order has been expressly asked by the person entitled to the benefit of the order or not.”On Issue 3, whether the learned trial judge is right to reinstate the sale of the mortgage property Counsel for the Respondents reproduced the argument on Issue 2. He submitted that the reinstatement of the sale of the mortgaged property does not amount to setting aside of the earlier judgment of the trial court delivered in December 1999, but was done as a result of the failure of the judgment debtor to discharge his indebtedness to the bank which is the cornerstone in getting back the landed property; that the declaring of the sale of the landed property as improper in 1999 was to give the judgment debtor opportunity to set off his indebtedness, but since he could not do that after 5? years, the court did not have any other alternative than to reinstate the sale of the said landed property to the 2nd Respondent/purchaser, Alhaji Aliyu Musa. He relied on the case of GEN. & AVIATION SERVICES v. THAHAL (2004) 18 NSCQR 225.
On Issue 4 – whether the learned trial judge was right in making consequential order pursuant to the suit – Counsel for the Respondents argued that the order of the court, compelling the occupants of the landed property to vacate with immediate effect and deliver vacant possession to the judged creditors Bank is a consequential order that flows naturally from the main order made by the court; that it was not and order made directly against the occupants of the property, but made consequent upon the main order! He relied on the case of ALHAJI AMINU DANISOHO v. ALHAJI ABUBAKAR MOHAMMED (2003) 14 NSCQR 1, on the place of consequential order as “one giving effect to a judgment or order to which it is consequential. It is directly traceable to or flowing from that judgment or order…” See also Emmanuel Ilona v. Sunday Idako & ANOR. (2003) 14 NSCQR 1011; GARBA v. UNIMED (1986) 1 NWLR (Pt.18) 550.
On Issue 5 – whether the Appellant can raise fresh issues without the leave of court – the Respondent claimed that the issue arose from ground 6 of the original notice of Appeal, dated 21/7/2005 as well as from the amended notice of Appeal dated 22/2/2010.
He urged us to resolve the issues against the Appellant and dismiss the Appeal.
RESOLUTION OF THE ISSUES
Certainly the 5th issue by the Respondents cannot pass for an issue for determination of the appeal, as it rather sounds as a preliminary objection against ground 6 of the Appeal, but then, the objection was not formally or properly raised (and was not even part of the ill-fated preliminary objection which the Respondents tried to raise against the appeal). The said issue 5 by the Respondents, it can be seen, does not flow from any of the grounds of appeal. It is accordingly struck out, together with the argument thereunder. See the case of AFRIBANK v. YELWA (2011) ALL FWLR (PT. 585) 299 AT 309 – 310; NWAIGWE v. OKEKE (2008) ALL FWLR (PT. 431) 843; SENATOR AHMADDAMZOMO v. SALEH MUSA & ANOR. (SUPRA), PAGES 5 -7.
I should also add that the Respondents cannot try to originate an issue for determination from a notice and grounds of appeal that have been overtaken and abandoned. Appellant had filed an Amended Notice of Appeal, with amended grounds of appeal in this case, with the leave of court. From the date of the grant of the leave by this court for Appellant to amend his notice of appeal and of the filing of the amended notice of appeal, the original Notice of Appeal and the grounds thereof became abandoned and ceased to have any legal value, and so no issue for determination could predicate on the said original Notice and grounds of appeal.
I must, however, confess that throughout my few years on the bench, which is over 12 years, I have never come across a more bizarre and absurd judgment/ruling that tends to mock the whole essence and principles of adjudication by a superior court of record. The learned trial judge, who heard both the main suit and the motion for issuance of writ of execution, appeared to be a judge in a world of his own, without law and rules on his limits to make orders and in general handling of court proceedings to arrive at a decision. He was at large.
In the circumstances, I think the only issues that are relevant for the determination of this appeal are
(1) Whether the learned trial judge was right in making an order for issuance of a writ of execution against immovable property of the Appellant in the circumstances of this case.
(2) Whether the learned judge could, by law set aside his earlier judgment of December 1999, and reverse himself on the sale of the Appellant’s’ property and that suo motu (without any application)?
(3) Whether the trial court can make order of vacation of the property against persons who were never parties to the application and so were not accorded any hearing?
I believe the above three issues have taken care of the 5 issues raised by the Appellant and the remaining 4 issues by the Respondents. Appellants’ issue 1, 2 and 5 as well as Respondents’ issues 1 and 2 are subsumed in the issue I above, while Appellant’s’ issue 3 and Respondents’ issue 3 are quartered by the issue 2 above, and the issue 3 takes care of the Appellants’ issue 4 and Respondents’ issue 4 – which talked about consequential order, but actually addressed the order made against the occupiers of the property in contention, without joining them as parties or giving them notice.
ISSUE ONE:
Though the judgment of the trial court, in the main suit, delivered in December 1999, was not appealed against by any of the parties, the decision (of the learned trial court) appeared strange and unenforceable, when held:
“That the plaintiff is to pay to the bank all his indebtedness fully calculated and audited, within 3 months from being informed of the amount and the first defendant bank will release the Certificate of Occupancy back to him”
That holding was not predicated on any claim before the court, especially as the defendant never counter claimed! The amount to be considered as indebtedness was unknown and uncertain, and it was to be audited (in the future at the whims and caprices of the Bank). And the plaintiff was to pay (whatever the amount!) within 3 months of being uninformed of the amount! Absurdity galore!
Meanwhile, the claim of the plaintiff before the court was:
a) “Declaration against the Defendants jointly and severally that there, was no sale of the landed property covered by the Certificate of Occupancy No.LKN/CON/RES/88/450 by the 1st Defendant to the 2nd Defendant or to any one at all
b) Declaration that, if the said house was sold, at all, which is denied, such sale was improper, illegal, and fraudulent and therefore void. ”
Of course, on the claim, the learned trial judge was ready to give even more than prayed for, when he held:
1) “That there was never any valid sale of the landed property of the plaintiff covered by the Certificate of Occupancy… by the 1st Defendant or to anybody at all.
2) That any such sale of the house is improper, illegal, fraudulent and therefore null and void. It is herby set aside.”
And in a sudden somersault, the learned trial judge turned round to hold that the land had been sold to a 3rd party by the Bank (1st Defendant), and he ordered the plaintiff and 1st Defendant to jointly, make refunds to the said 3rd party, Hear him:
“The 3rd Defendant is to be paid back all his expenses/payments for the purchase of the house estimated at N200,000.00 (two hundred thousand Naira) or thereabout by the 1st Defendant within 3 months from today. The 3rd Defendant is also to be paid all his expenses/payment registration of the land estimated to be N90,000.00 (Ninety Thousand Naira) jointly and severally by the plaintiff and the 1st Defendant within 3 months from today? ” (See pages 119-120 of the Records of Appeal)
Again, there was no claim for those reliefs. Even the oddity of holding the plaintiff and a defendant, jointly, liable to another Defendant (who made no claim in the court) appeared to have registered no wrong card in the legal consciousness of the learned trial judge.
That was the judgment which the 1st Respondent applied “for an order issuance of a writ of execution against the immovable property of the (Appellant) -John Ayoade as Debtor covered by statutory Certificate of Occupancy No.LKN/CON/RES/88/450”
Of course, by the judgment of December 1999, the Appellant could not be validly referred to a “Judgment Debtor” under that judgment, as even the 1st Respondent, who took out the motion of 13/6/2003, had also been adjudged a judgment debtor in the case, as per an aspect of that judgment, and was expected to pay N200,000.00 to the 3rd Defendant and another N90,000.00, jointly with the plaintiff, to the said 3rd Defendant. The amount which the court intended to hold the Plaintiff (Appellant) liable to the Bank (1st Respondent) was futuristic and speculatory, unknown and uncertain, and therefore unenforceable! For the 1st Respondent to validly lay claim to any amount, pursuant to that judgment, it needed to establish clearly, before the trial court (upon the motion for writ of execution) that it had audited the indebtedness of the Appellant (which caused the mortgage of his property – Certificate of Occupancy No.LKN/CON/RES/88/450); that it had informed the Appellant of the same, and had waited for at least 3 months, after the information; that the Appellant failed to settle the debt, after the 3 months notification. It does not end there, as further understanding of the judgment would require the 1st Respondent to bring application to prove the outstanding debt, before it could attempt to levy execution by seeking a writ of execution.
That appears inevitable, to establish and ascertain the judgment debt in the circumstances. In the absence of the above, it was preposterous to hold that Appellant was a judgment debtor, over the imaginary, unspecifiable debt.
A judgment debt must be specified, ascertained or ascertainable, to qualify to acquire the prefix “Judgment” Debt, being a clear court order, which must be clear, firm and capable of precise interpretation and enforcement. OGOLO v. OGOLO (2003) LPELR 2309 SC. SEE ALSO ORJI UZOR KALU v. FRN (2012) LPELR 9287 CA, where this court said:
“… it is imperative and fundamental that a court of competent jurisdiction in making an order should be conscious and wary of the nature and manner of order made in order to avoid a diminution of the vast powers of the court, the image of the court and the exposure of its authority to ridicule. Therefore orders of court must he devoid of vagueness, it must be clear and explicit on what it contains and the parties it will effect.”
Throughout the arguments on the application at the lower court,and the arguments of Counsel in this appeal, there was no where the Respondents established the exact “Judgment debt” which they wanted the trial court to order for issuance of writ of execution. They merely appeared to seek to enforce the bogus, uncertain brain wave of the trial judge delivered on 16/12/1999, which even made the adverse parties judgment debtors to themselves and to each other, and also made a futuristic award (amount) not capable of being quantified, or specified, and that unsolicited!
In fact, even the figure which the 1st Respondent bandied as being the audited judgment debt, as at 31/5/2003 – in the sum of N977,550.75 – was said to include legal fees (probably of the lawyers working for the 1st Respondent) That cannot be legitimate debt to be settled by the Appellant.
I therefore resolve Issue 1 in favor of the Appellant.
Issue 2: Can the learned trial judge set aside his earlier judgment and reversed himself, suo motu, when there was no application for him to do so, with justifiable reasons?
On the 16/12/1999, among other things, the learned trial judge had said:
“There was never any valid sale of the landed property of the plaintiff covered by Certificate of Occupancy No.LLN/CON/RES/88/450 by the 1st Defendant (sic) or to anybody at all… any such sale of the said house is improper, illegal, fraudulent and therefore null and void. It is hereby set aside.” See pages 119 of the Records.
But on 14/7/2005, upon the application by the 1st Respondent for issuance of writ of Execution (of the same judgment of 16/12/1999), the same trial judge said:
“That the Judgment Debtor on the other hand has no right to remain in the landed property which had already been sold by the bank to a third party and also refuse to settle the indebtedness”. (Underlining mine) “That since the Judgment Debtor failed to utilize the opportunity given to him since December 1999 and the purchasers’ money had been hold (sic) by the bank which if it will attract interest for 5? year the money would have tripled by now this amount to taking (sic) advantage over both the bank and the purchaser. The Court must hold that the judgment debtors HANDS ARE NOT CLEAN and he cannot be granted any EQUITABLE RELIEF… The judgment debtor having exhibited BAD FAITH worse than the BANK and the PURCHASER he cannot be allowed to complain about BAD FAITH of lack of BONAFIDES anymore. That in the circumstances the previous sale to the PURCHASER will have (sic) be reinstated and reasserted.” (Emphasis by the lower coart) (See page 151-152 of the Records)
Of course, that clearly shows the mindset of the trial judge, that he had no respect for rules and procedure, nor for precedent, and the fact that a judgment of court remains valid and binding until set aside by a competent court (usually on appeal). It is not for the judge that delivered the earlier judgment to wake up, after some time, and change his mind and reverse himself, even without being called upon to do so.
There are, however, some special circumstances, where a judge can set aside his previous judgment/order on a proper application to that effect or suo motu and in each such circumstance, it must be established that the previous decision was reached:
i. without jurisdiction, or
ii. Entered per incuriam, or
iii. Under a situation of fraud or misrepresentation or mistake or incompetence to make the order. See the case of KAYODE A. v. ABDULFATAI (2012) LPELR 7874 (CA); (2012) 33 WRN 145; MOMODU v. MOMOH (1985) 5 NWLR (Pt. 43) 649; OBIMOURE v. ERINOSHO (1966) 1 ALL NLK 250
Of course, none of the above situations was cited as reason for the trial judge going against his earlier decision and reversing himself.
The learned counsel for the Respondents had tried to argue that the judge did not set aside his earlier judgment but had ordered the reinstatement of the sale of the property, because of the failure of the judgment debtor to discharge his indebtedness to the Bank as that was the cornerstone to getting back his landed property; that the declaration of the sale of the land as improper in 1999 was to give the judgment debtor opportunity to set off his indebtedness and since Appellant did not do so, after 5? years, the court had no alternative to reinstating the sale. He had no legal authority to back up the obscure argument.
Very sad, to hear such reasoning/argument from a learned counsel, who should always be on the side of the law and sound logic, and under a duty not to mislead the court, and not to defend the indefensible.
A Court decision must be founded on law, and evidence before the court, and in keeping with sound legal principles and tradition. It is not at the whims and caprices of the judge, as per the waves of his brain and feeling! See the case of OGOLO v. OGOLO (Supra).
The law is also settled that a judge cannot sit on appeal over his earlier decision and take a decision contrary to what he earlier did, as he (judge) becomes functus officio over the previous suit, the moment he delivers the judgment. It is for the appellate court to evaluate the decision of the trial court, on the same being appealed against, to come up with finding whether the trial court was right or wrong.
In the case of Wimpey Ltd v. Balogun (1986) 3 NWLR (Pt 23) 324 at 388 it was held:
“The law of course, is clear that where a judge has delivered his final judgment in a suit he becomes functus officio with respect to the suit. Except for making the ancillary orders such as orders for stay of execution of judgment or for payment of the judgment debt by installments. Once a judge has delivered a final judgment in a matter, he ceases to be seised of that matter and cannot alter or reopen it in an application made under a statute by one of the parties” See also Edem v. Akamkpa Local Government (2000) 1 NWLR (Pt. 651) 70
When the learned trial judge allowed the 1st Respondent’s application to mislead him to taking a stand against the Appellant, he appeared to have forgotten that the same 1st Respondent was also a judgment debtor in his earlier judgment of 16/12/1999 and had been ordered to pay the sum of N200,000.00 to the 3rd Defendant, being the latter’s expenses/payment for the purchase of the house in question, and it was to do so within 3 months, But in the Ruling of 14/7/2005 the trial Court said:
“That since the judgment Debtor failed to utilize the opportunity given to him since December, 1999 and the Purchaser’91s money had been hold (sic) by the bank which if it will attract interest for 5? years the money will have tripled by now this amount (sic,) to taking advantage over both the bank and the purchaser” (underlining mine).
Of course, even by the skewed judgment of 16/12/1999, the Bank was a contemnor, as at the time it brought the application in 2005, if it had not paid the N200,000.00 to the 3rd Defendant, the court having held that there was no valid sale to him of the land by the Bank. Surprisingly, the learned trial judge seemed to blame the failure of the bank to pay the 3rd Defendant after 5? years on the Appellant, holding that Appellant took advantage of the bank and the 3rd Defendant, Strange and very absurd reasoning, indeed!
I therefore resolve this issue for the Appellant.
Issue 3 was that the learned trial court made orders which affected persons who were not parties in the suit and were not placed on Notice of the trial.
Of course, after the trial court had set aside the sale of the Appellant’s property in 1999, he was free to assume possession/ownership of the same and could lease, sell and, anyhow, deal with any 3rd party over the land. At the time of the motion by the 1st Respondent in 2005, there was nothing to explain the relationship of the occupiers of the property with the Appellant. The 2nd prayer of the 1st Respondent was for
“Order of Court compelling the occupants of the property to vacate the premises immediately, failing which forcefully…”
Having contemplated making the occupiers of the said property, victims or casualties (at the receiving end) of the application the 1st Respondent brought, as it aimed at affecting them, the 1st Respondent had a legal and moral duty to make the occupants (occupiers) parties to the suit, to give them opportunity to be heard and to defend themselves, before visiting them with any calamity, which the order it sought was bound to inflict on the said occupiers. Of course, the suit of 1999 was different from the application of 2005 for issuance of writ of execution, especially as more persons, than the Appellant, were contemplated to be affected by the application!
In practice, the application could not have been taken in the same suit No.K/103/95, which had been, disposed of on 16/12/1999. The application should have originated in a miscellaneous suit number, with all the persons targeted (to be affected) by the Ruling of the Court, joined as parties. This is because the Court has no jurisdiction to make order(s) to bind a party that was not given opportunity to be heard by the Court before issuing the orders, except such persons are agents, servants or privies of the parties to the case, (in which case they are contemplated in the parties, before the Court).
One of the cardinal requirements of law,to imbue a Court which jurisdiction to hear a case, is that the parties/persons to be affected by its decision must be duly summoned/served with the processes of Court and given opportunities to be heard/defend themselves. That is an inalienable Constitutional right of every person. See section 36 (1)(3)(6) of the 1999 Constitution, as amended. See the case of SLB CONSORTIUM LTD v. NNPC (2011) 9 NWLR (Pt. 1252) 317; BRITISH AMERICAN TOBACCO NIG LTD v. INTERNATIONAL TOBACCO CO. PLC (2012) 39 WRN 60; (2013) 2 NWLR (Pt. 1339) 3493. Where this court held thus, on necessary parties to a suit and effect of not joining them:
“Necessary parties are those who are not only interested in the subject matter of the proceeding but also who, in their absence, the proceedings could not be fairly dealt with. In other words, the question to be settled in the action between the parties cannot be properly settled unless they are parties to the action instituted by the plaintiff.”
(GREEN v. GREEN (1987) 3 NWLR (Pt. 61) 480 MOBILE OIL PLC v. DENR. LTD (2004) 1 NWLR (Pt. 853) 142; LAWAL v. PGP (NIG) LTD (2002) 17 NWLR (Pt. 742) 393; OBASANJO v. YUSUF (2004) 9 NWLR (Pt. 877) 144.
“Where the resolution of a crucial issue in an action revolves around a person who is not a party to the suit, then the action is fatally defective. This is because the parties in the suit could not have been properly constituted. Thus, any one whose presence is crucial and fundamental to be resolution of a matter before the Court must be made a party to the proceedings.”
LAWAL v. PGP NIG. LTD. (Supra)
The non-joinder of the occupiers to the motion was therefore fatal to the application, as the Court had no jurisdiction to pronounce against them, without hearing from them.
The learned Counsel for the Respondent was therefore in deep error when he argued that the order of Court against the occupiers of the property was a “Consequential Order” flowing from the omnibus prayer in the motion for “Such Further other Order(s) as the Court may deem fit to make:” He sought to rely on case of DANTSOHO v. MOHAMMED (2003) 14 NSCQR ILORIA v. IDAKA AND ANOR. v. (2003) 14 NSCQR 1011.
That did not appear an honest submission, because the Respondents had, repeatedly, reproduced the second prayer on the motion papers as one seeking immediate vacation of the premises in question by the occupiers or be forced out. That could not have also constituted an omnibus prayer.
I therefore resolve the issue 3 in favour of the Appellant, and, on the whole, hold that the appeal is meritorious and should be allowed. It is accordingly allowed.
The parties shall bear their respective costs.
ABDU ABOKI, J.C.A.: I have had the opportunity of reading before now the judgment just delivered by my learned brother ITA GEORGE MBABA, JCA.
I entirely agree with the reasoning and conclusion contained therein, that there is merit in the appeal and it is hereby allowed by me. I abide by the consequential order as to costs, contained therein.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother, Ita Mbaba, JCA. His Lordship has painstakingly considered and resolved all the issues in contention in this appeal. I agree with and endorse the reasoning and conclusions contained therein.
The learned trial Judge in the matter, both in the judgment delivered on the 16th of December, 1999 and in the Ruling delivered 14th of July, 2005, apparently forgot some of basic rules of judicial adjudication and the limits placed on the power of Court in its duty of resolving issues in dispute between parties. Firstly, the trial Judge overlooked the long established principle that the parties and the court are bound by the pleadings and a court cannot make out its own case outside the pleadings of the parties.
A court should not set up for parties a case different from the one set up by the parties in the pleadings – Skye Bank Plc v. Akinpelu (2010) 9 NWLR (Pt 1198) 179 and Baliol (Nig) Ltd. v. Navcon (Nig) Ltd (2010) 16 NWLR (Pt.1220) 619. A court must confine its judgment to the determination of the issues raised on the pleadings – First Bank of Nigeria Plc v. Olaleye (2013) 1 NWLR (Pt 1334) 102. The trial Judge completely ridiculed these principles in his deliberations both in the judgment and in the Ruling as he embarked on a voyage that he was not invited to by the parties in their pleadings; he went outside the cases presented by the parties and he reached decisions on the case he set up for the parties. The instances were properly highlighted in the lead judgment and need no repeating here.
Secondly, the trial Judge, obviously confusing his robes with Santa Claus’s outfit, turned himself into Father Christmas and dished out orders, both in the judgment and in the ruling, far beyond what was asked for by the parties. The prayers sought by the Appellant in the substantive suit and the prayers sought by the first Respondent in the motion leading up to the ruling as well as the orders made thereon by the lower Court were ably set out in the lead judgment and do not also need repeating here.
It is a long abiding principle of adjudication that a Court cannot grant reliefs not sought by the parties – Eagle Super Pack (Nig) Ltd v. African Continental Bank Plc (2006) 19 NWLR (Pt 1013) 20 and Ado Ibrahim & Co Ltd v. Benue Cement Co. Ltd (2007) 15 NWLR (Pt 1058) 538. The parties and the Court are bound by the reliefs sought on an application – Multibras S A v. PZ Company Plc (UK) (2006) 8 NWLR (Pt 997) 420. A court cannot grant more reliefs than that claimed by the parties – Ngige v. Obi (2006) 14 NWLR (Pt 999) 1 and Ogunyade v. Oshunkeye (2007) 15 NWLR (Pt 1057) 218.
Thirdly, it is a settled principle that where a court has decided an issue and the decision of the court is embodied in some judgment or order that has been effective, the court cannot re-open the matter and substitute a different decision in place of the one which has been recorded. Anyone who seeks to change it must appeal against it. Thus, once a trial court delivers its final judgment or ruling it becomes functus officio and ceases to be seised of the matter except for making ancillary orders such as stay of execution, etc – Minister of Lagos Affairs, Mines and Power v. Akin-Olugbade (1974) 1 All NLR (Pt.2) 226, Bakare v. Apena (1986) 4 NWLR (Pt 33) 1, Ikpong v. Udobong (2007) 2 NWLR (Pt. 1017) 184 and Usman v. Kaduna State House of Assembly (2007) 11 NWLR (Pt 1044) 148. The trial Judge did the exact opposite of this principle in his ruling of 14th July, 2005. He revisited the orders he made in the judgment of 16th of December, 1999 and reversed them and made further orders in affirmation of the reversion of the earlier orders.
Fourthly, it is trite that a Court has no power to make orders either in favour of or against persons who are not parties to an action – Biyo v. Ibrahim (2006) 8 NWLR (Pt 981) 1 and Nnaemeka v. Chukwuogor (2007) 5 NWLR (Pt 1026) 60. The trial Judge did exactly this in its ruling of the 14th of July, 2005 when he made an order compelling the occupants of a property, and who are not parties to the suit, to vacate the property immediately and failing which they were to be forcefully evicted.
It is possible that perhaps the learned trial Judge did all he did in jettisoning the above said principles because he believed that they were a handicap to his quest to ensure that justice was done between the parties. The trial Judge must be reminded that justice is only meaningful where it done within the parameters of laid down rules and not based on the whims and caprices of individual Judges. The Court room is not like the King’s Court in the traditional African setting where the King did as he wanted. This point was made long ago by Oputa, JSC in Willoughby v. International Merchant Bank (1987) 1 NWLR (Pt 48) 105 at 131 -132 thus:
“I think it is too late in the day to argue that the Court’s primary function is to do justice between the parties to a dispute. One sided justice will amount to injustice.
Now Courts do not administer abstract justice or a ‘brooding omnipotence in the sky’. The law is made to ensure justice. Rules of Court are handmaids of justice. It is only by the orderly administration of law and obedience to the Rules that legal justice can be attained. When a particular decision is against all known rules; against all known principles then it is, certainly, not made in the interest of justice. The ruling above was definitely not in the interest of justice, not even in aid of justice but rather in aid of sloth and incompetence. . .”
I also consider it pertinent to make a few comments on the approach of the Counsel to the Respondents to this appeal. Counsel filed a forty-four paged further and further amended brief of argument in the defence of the orders made by the trial Judge in the ruling of 14th July, 2005. By the arguments in the brief of arguments, the Counsel to the Respondent sought to endorse the breach of laid down principles of adjudication committed by the trial Judge. Nowhere in the entire brief of argument did the Counsel concede that the actions of the trial Judge were an aberration to the laid down procedure for adjudication of matters. Counsel must be reminded that it is not put of good advocacy to seek to defend orders of Court which are clearly unsupportable simply because they are beneficial to his client. Counsel must constantly remember that their duty is not to the client per se but to the course of truth and justice and to the system of administration of justice. This point was eloquently made in the English case of Rondel v. W (1966) 3 All ER 657 by Lord Denning at page 665 thus:
“As an advocate he is a minister of justice equally with the judge. He has a monopoly of audience in the higher courts. No-one save he, can address the judge, unless it be a litigant in person. This carries with it a corresponding responsibility. A barrister cannot pick and choose his clients. He is bound to accept a brief for any man who comes before the courts. No matter how great a rascal the man may be. No matter how given to complaining. No matter how undeserving or unpopular his cause. The barrister must defend him to the end. Provided only that he is paid a proper fee, or, in the case of a dock brief, a nominal fee. He must accept the brief and do all he honorably can on behalf of his client. I say ‘all he honorably can’, because his duty is not only to his client. He has a duty to the court which is paramount. It is a mistake to suppose that he is the mouthpiece of his client to say what he wants: or his tool to do what he directs. He is none of these things. He owes allegiance to a higher cause. It is the cause of truth and justice. He must not consciously mis-state the facts. He must not knowingly conceal the truth… He must disregard the most specific instructions of his client, if they conflict with his duty to the court. The code which requires a barrister to do all this is not a code of law. It is a code of honor…”
Also writing in the same vein, a, great jurist J. Wesley McWilliams said in an article he titled “The Law as a Dynamic Profession” in an American Bar Association Journal in January 1955 (41 ABA 18) thus:
“We belong to an ancient, to a great, to an honored profession. The practice of Law is a worthy calling. It has rewarded us with financial success and with prestige and leadership in our communities. It has given us much happiness and the good life. From it we have received the gratitude and respect of our friends and neighbors whom we have served. Our word affords intellectual pleasure with dignity and independence, in competition with our fellow Lawyers with whom we have cemented warm friendships and enjoyed happy companionships. For these blessings, we cannot but have a sense of gratitude and of obligation. The most productive, unselfish and wholly satisfying repayment of the obligation is constructive work to increase the effectiveness of our judicial system and the welfare of the profession.”
It is essential for Counsel to understand the extent of their duties to the court and the administration of justice system to enable them appreciate that it is better to condemn, rather to seek to condone, actions that ridicule the laid down procedures for achieving justice between parties.
Where a trial court makes orders in the manner done by the trial Judge in the instant case, an appellate Court has a duty to set aside those orders. It is for these reasons, and the fuller reasons contained in the lead judgment, that I also allow this appeal. The orders made by the High Court of Kano State in the Ruling delivered on the 14th of July 2005 by Adamu J. are hereby set aside. I abide the order of cost made in the lead judgment.
Appearances
K. B. Olawoyin Esq.For Appellant
AND
Charles Asogwu Esq.For Respondent
