SAMUEL OYEWUNMI OYINLOLA v. DAVID OJELABI & ORS.
(2010)LCN/3794(CA)
In The Court of Appeal of Nigeria
On Friday, the 14th day of May, 2010
CA/I/128/2007
RATIO
COURT: DUTY OF COURT TO CONFINE ITSELF TO ISSUES RAISED BY THE PARTIES
It is the law that the Court must always confine itself to issues raised by the parties in their pleadings and evidence before it. Also in the administration of justice, the decision of a Court should not be based on the intuition of the Judge or what he conceives to be a fair conclusion. See the case of BAMGBOYE VS. OLANREWAJU (1991) 4 N.W.L.R Part 184 at 132. PER MODUPE FASANMI, J.C.A.
COURT: DUTY OF COURT NOT TO ENTER THE ARENA IN THE ISSUES BETWEEN THE PARTIES
The Court must be wary not to enter into the arena in the controversy between the parties by projecting the case of one of the parties. See the case of BAYOL VS. AHEMBA (1999) 10 N.W.L.R Part 623 page 381 at 391 – 392 paragraphs G-B where Achike J.S.C had this to say:
“The law remains inviolate that the judgment of a Court must confine its inquiry entirely to the determination of issues properly raised and canvassed by parties before it” PER MODUPE FASANMI, J.C.A.
APPEAL: SITUATION WHERE THE APPELLATE COURT WILL INTERFERE WITH THE FINDINGS OF THE TRIAL COURT
This Court has a duty to interfere with the findings of the trial Court in the instant case as the conclusions reached by it were perverse thereby occasioning a miscarriage of justice to the Appellant See the cases of ATOLAGBEVS. SHORUN (1985) 1 N.W.L.R Part 2 at 360; EGBAVS. APPAH (2005) 10 N.W.L.R Part 934 at 464 and OJU L.G VS. I.N.E.C (2007)14 N.W.L.R Part 1054 at 242. PER MODUPE FASANMI, J.C.A.
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
SAMUEL OYEWUNMI OYINLOLA Appellant(s)
AND
(1) DAVID OJELABI
(2) CHIEF DAVID FOLARANMI
(PRESIDENT, ILERO GRADE C CUSTOMARY COURT)
(3) CHIEF D. S. ADENIYA
(MEMBER, ILERO GRADE C CUSTOMARY COURT)
(4) PRINCE OLULADE ALABI
(MEMBER, ILERO GRADE C CUSTOMARY COURT Respondent(s)
MODUPE FASANMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Justice, Oyo State sitting in Saki Judicial Division which was delivered on the 30th of November, 2006. Dissatisfied with this ruling, the Appellant appealed to this Court and filed a notice of appeal dated 11th December, 2006 but filed on the 13th of December, 2006 containing one ground of appeal.
Respondent on the 20th of March, 2006 before the High Court of Justice Saki, Oyo State filed an application for an order of prohibition, against the 2nd – 4th Respondents from further adjudicating and or determining the suit no. ICC/21/06 between Samuel Oyinlola Vs. David Ojelabi pending the final determination of the motion on notice.
The grounds of the application are:
(a) Lack of original jurisdiction
(b) Failure to comply with the rule of fair hearing and
(c) Likelihood of bias
The learned trial Judge considered the affidavits in support and the counter affidavit to the motion on notice, the submissions of Counsel and the authorities cited. The Court came to the conclusion that the application succeeds on ground three which is likelihood of bias. It is against this decision that the Appellant has appealed to this Court.
In accordance with the rules of this Court, Appellant filed his brief on the 13th of September, 2007. By a motion filed on 28/1/09, Appellant urged this Court for the appeal to be heard on Appellant’s brief only for failure of the Respondents to file their briefs of argument. The prayer was granted on the 24th of March, 2009 for the appeal to be heard on Appellant’s brief alone.
It is on record that the Respondent’s Counsel were served with the hearing notices of the appeal but they were absent at the hearing. Appellant adopted and relied on his brief of argument filed 13th September, 2007.
Appellant distilled a sole issue for determination thus:
Whether or not the trial Judge having found from pleadings of parties, evidence at trial and submission of Counsel that all the grounds of the 1st Respondent’s application failed, can subsequently found the success of the 1st Respondent’s case on an extraneous event not covered by evidence of parties or on evidence fished for and/or obtained by the Court.
Learned Counsel for the Appellant submitted that the motion on notice at the lower Court seeking for an order prohibiting the 2nd – 4th Respondents from further adjudicating in suit no. ICC/21/06 between the Appellant and the 1st Respondent is premised on three grounds namely:
(a) Lack of original jurisdiction
(b) Failure to comply with the rule of fair hearing and
(c) Likelihood of bias
He submitted that 1st Respondent’s affidavit in support of the three grounds centred particularly on events preceding and immediately after the institution of suit no. ICC/21/2006 between Samuel Oyinlola Vs. David Ojelabi at the IIero Grade ‘C’ Customary Court.
Learned Counsel for the Appellant submitted further that the learned trial Judge dismissed one after the other each of the three grounds upon which the 1st Respondent’s application at the lower Court was premised. He argued that the trial court having found that the application as brought by the 1st Respondent was without merit ought to dismiss it outright. But the learned trial Judge somersaulted and held in the last paragraph that the application succeeds on ground three which is likelihood of bias. He then granted the 1st Respondent’s application and restrained the 2nd – 4th Respondents from further adjudicating and/or determining suit no. ICC/21/2006 between the Appellant and the 1st Respondent therein. He argued further that, it is incompetent of a Court to suo motu make a case for either party as the learned trial Judge has done in this case and then proceed to give judgment on the case as formulated by him contrary to the case of the parties. He relied on the Supreme Court authority of BAMGBOYE VS. OLANREWAJU (1991) 4 N.W.L.R Part 184 page 132 at pages 151-152 paras E-F where Karibi – Whyte J.S.C. held as follows:
“The Judge is not allowed to formulate the claim, defence or arguments for either of the parties, so can he not formulate issues for a party in the determination of the case before him. Where a party failed to raise an issue relevant to the determination of his case, such issue would be deemed to be irrelevant via the party; and he would be presumed not to be seeking the decision of the Court on that issue.”
Learned Counsel for the Appellant submitted that the learned trial Judge based his decision in granting the 1st Respondent’s application on the allegation that the Appellant and the 2nd – 4th Respondents sat together in Court, canvassed therein and then continued to monitor their movements right from his chambers from where he also saw that they departed in the same vehicle. There is never a rule of law or practice that forbids parties from sitting together in Court as they wish, even if they are on opposing sides. To suggest otherwise is to denigrate the Court rooms and turn them into a theatre of physical combat. Learned Counsel argued that the judgment of the learned trial Judge was based on a contingency which the 1st Respondent himself did not envisage or anticipate before filing his suit and without which the case would have failed. Learned Counsel urged the Court to allow the appeal and consequentially remit the case back to the Ilero Grade ‘C’ Customary Court for continuation of trial. It is the law that the Court must always confine itself to issues raised by the parties in their pleadings and evidence before it. Also in the administration of justice, the decision of a Court should not be based on the intuition of the Judge or what he conceives to be a fair conclusion. See the case of BAMGBOYE VS. OLANREWAJU (1991) 4 N.W.L.R Part 184 at 132. The findings of the learned trial Judge which gave rise to this appeal are stated at pages 65 – 66 of the record of proceedings as follows:
“However the fact that the 1st to 3rd Respondents are likely to be biased against the Applicant and in favour of the 4th Respondent was clearly demonstrated before this Court. All the Respondents were present in court. Apart from the fact that the 1st to 3rd Respondents and the 4th Respondent who is the Plaintiff in the suit before the lower Court sat together and constantly conferred with each other during the arguments and submissions of both Counsel before this Court, I noticed at the conclusion of proceedings that all the Respondents left the court room together at the same time and were discussing with each other.
I called the attention of the learned Counsel for the 4th Respondent to this unwholesome act. They were called back to the Court room where I talked to them to desist from such practice. To my amazement, all the Respondents right at the gate of the Court premises which is a very small premises entered same vehicle, a Peugeot Station Wagon Car and drove away. In all conscience, I cannot imagine a better demonstration of likelihood of bias. In the face of such cordiality and interaction between a litigant and the adjudicators even right in the face of this Court, I cannot see how a reasonable man, will go away not thinking that the 1st to 3rd Respondents are likely to be biased in favour of the 4th Respondent. There is no way anyone will have confidence in whatever judgment the 1st to 3rd Respondents may hand down. For the above reasons, this application succeeds on ground three, which is likelihood of bias.”
The finding of the learned trial Judge was based on the closeness and/or affinity of the Appellant with the 2nd – 4th Respondents. Did the parties join issues on this in their affidavits before the lower Court? I have carefully perused the entire length and breadth of the record of proceedings of the trial Court particularly the affidavit in support of the application for an order of prohibition and the counter affidavit against it. I am unable to see or deduce any act of likelihood of bias based on affinity or closeness of the Appellant with the 2nd – 4th Respondents.
The Applicant at the trial Court i.e David Ojelabi who is now the 1st Respondent before this Court challenged the jurisdiction of the Grade ‘C’ Customary Court manned by the 2nd – 4th Respondents and by not listing or fixing his motion for hearing, the Court has denied him fair hearing and that based on this challenge, there will be hostility towards him and which hostility is likely to lead to bias against him. The learned trial Judge earlier rightly found that the mere fact that the 1st Respondent has challenged the jurisdiction of the lower court and has accused them of denying him fair hearing would not show likelihood of bias on the side of the 2nd – 4th Respondents.
I agree with the learned Counsel for the Appellant that the learned trial Judge somersaulted when he granted the prayer of likelihood of bias on what the Court observed which was different from the affidavit evidence before the court. The findings of the learned trial Judge on its observation were based on passion thereby raising an issue that never arose from the evidence before it. The Court must be wary not to enter into the arena in the controversy between the parties by projecting the case of one of the parties. See the case of BAYOL VS. AHEMBA (1999) 10 N.W.L.R Part 623 page 381 at 391 – 392 paragraphs G-B where Achike J.S.C had this to say:
“The law remains inviolate that the judgment of a Court must confine its inquiry entirely to the determination of issues properly raised and canvassed by parties before it”
The issue of familiarity of the Appellant with the 2nd – 4th Respondents on which the learned trial Judge found in favour of the 1st Respondent was not submitted to the Court below for consideration nor was it raised in the parties affidavit nor did the learned trial Judge ask the parties to address the Court on it. See also the cases of SAGAYVS. SAJERE(2000) 6 N.W.L.R Part 661 page 360 at 370 and ADENIJI VS. ONAGORUWA (2000) 1 N.W.L.R Part 639 page 1 at 31. From the record, it is glaring that the learned trial Judge in his judgment took into account matters which he ought not to have taken into account, shut his eyes to the obvious and drew wrong inferences from adduced evidence. This Court has a duty to interfere with the findings of the trial Court in the instant case as the conclusions reached by it were perverse thereby occasioning a miscarriage of justice to the Appellant See the cases of ATOLAGBEVS. SHORUN (1985) 1 N.W.L.R Part 2 at 360; EGBAVS. APPAH (2005) 10 N.W.L.R Part 934 at 464 and OJU L.G VS. I.N.E.C (2007)14 N.W.L.R Part 1054 at 242. Consequently, the sole issue is resolved in favour of the Appellant.
The appeal has merit and it is hereby allowed. The Judgment of the lower Court is hereby set aside. It is hereby ordered that suit no. 1CC/21/06 between Samuel Oyinlola Vs. David Ojelabi be remitted back to the Ilero Grade ‘C’ Customary Court for continuation of the trial. No order as to cost.
STANLEY SHENKO ALAGOA, J.C.A. I read before now the Judgment just delivered by my brother Modupe Fasanmi (JCA) and I agree that the appeal has merit and should be allowed. I allow same and order that the case be remitted to the IIero Grade “C” Customary Court for continuation of the trial.
CHIDI NWAOMA UWA, J.C.A.: I have read before now the judgment just delivered by my learned brother Modupe Fasanmi, J.C.A. I agree with his reasoning and conclusion in holding that the appeal has merit and same is also allowed by me. I also order that the case be remitted back to the Ilero Grade ‘C’ Customary Court for continuation of hearing.
Appearances
Adewale Adegoke with O. Chinwunba and K. OgunjobiFor Appellant
AND
1st Respondent Absent.
2nd – 4th Respondents Absent.For Respondent
