A. S. Coker V. Adeyemi Adetayo & Ors (1992)
LawGlobal-Hub Lead Judgment Report
EUGENE CHUKWUEMEKA UBAEZONU, J.C.A.
This is an appeal from the judgment of Agoro, J. sitting as an Appellate court at the High Court of Lagos State. The plaintiff/respondent sued the defendant/appellant in the Magistrate’s Court for recovery of possession of a flat at the ground floor of the premises situate at No. 5/7, Ajasa Street, Lagos. The plaintiff also claimed arrears of rent and mesne profit. After hearing evidence, the learned trial Chief Magistrate in a reserved judgment gave judgment for the plaintiff for recovery of possession and mesne profit. The defendant had paid the arrears of rent during the hearing. From the judgment of the Chief Magistrate, the defendant appealed to the High Court. The case came up before Agoro, J. of the Lagos High Court. He heard the appeal and in a reserved judgment dismissed the appeal on 1st day of August, 1986. It is from that dismissal that the appeal has come to this Court.
Pursuant to S.221 (1) of the Constitution of the Federal Republic of Nigeria 1979, the defendant/appellant (hereinafter referred to as “the appellant”) applied for and obtained leave of the High Court to appeal to this Court. He also obtained an order for stay of execution pending the determination of this appeal. The appellant thereupon filed his Notice and Grounds of Appeal. Four grounds of appeal were originally filed. Later, the appellant filed, with leave of this Court, three amended grounds of appeal in substitution to the four grounds originally filed. The amended grounds of appeal are as follows:-
“1. The learned Judge of Appeal erred in law in affirming the decision of the trial Magistrate that appellant should give up possession of the flat occupied by him on the ground of nuisance when acts of nuisance complained of was post issue of summons.
Particulars of Error
(i) The leakage of gas of 26th of May, 1983 mentioned by the trial Chief Magistrate and accepted by the Learned Judge of Appeal is post issue of summons for possession and cannot in law be a ground of nuisance of possession.
(ii) There were no dates of other incidents of gas leakage or of placing of planks on frontage of the appellant’s flat to suggest that the said acts were done before the issue of statutory notices and summons for possession.
2. The learned Judge of Appeal erred in law and in fact in holding inter alia:
‘I have examined Exhibit “B” and while it is conceded that 3rd plaintiff (Adebiyi Kehinde Adetayo) did not sign the said document, there could be no doubt from the oral testimony of Mr. Adeyemi Adetayo (P.W.1) and Mrs. Elizabeth Adekemi Shadare (Nee Adetayo) (P.W.3) that at a family meeting attended by plaintiffs (except the 4th plaintiff who was away to Bulgaria) it was decided that the 4th plaintiff should occupy the ground floor flat at Nos. 5/7, Ajasa Street, Lagos.
I am satisfied that the wishes of the other plaintiffs have been ascertained regarding the use of the said flat by Mr. Adewale Adetayo (4th Plaintiff)’.
when the evidence of P.W.1 and P.W.3 relating to wishes of the family is hearsay and contradicts Exhibit ‘B’.
3. Learned Judge of Appeal erred in law in holding inter alia at page 73 line 29 to page 74 line 6.
‘As regards the date of execution of the Letter of Authority marked Exhibit “C”, I should point out that under the provisions of Section 124 of the Evidence Law, Cap. 39, Laws of Lagos State 1973, Exhibit “C” must be presumed to have been executed on 3rd November 1982, in the absence of evidence to the contrary.’
Without considering the provision of S.124 of the Evidence Law as to circumstances where proof of correctness of date must be established.
The appellant filed his brief of argument in this Court on the 24th April 1990 while the respondent filed his own on the 5th June 1990. In his brief, the appellant formulated nine issues for determination as follows:-
“(a) Were acts of nuisance complained of (i.e. leakage of gas and placing of planks) prior or post issue of summons.
(b) If acts of nuisance complained of was post issue of summons can an order for possession be made?
(c) What is the legal position where there are several Landlords and possession is required for personal use of one of the Landlords?
(i) To succeed must all the Landlords require possession for themselves as set out in McIntyre v. Hardcastle (1948) 1 All E.R. 696 and followed in local decisions of Abudu Wahabi v. Dauda Kazeem (1959) High Court of Lagos Reports page 93 and Mudashiru Abudu v. Bello Liasu (1976) 4 CCHCJ 1145.
(ii) Is it sufficient if possession is required by one of the Landlords where the wishes of the other Landlords are clearly indicated as decided in Akale v. Olabisi Adewale (1977) 7 CCHCJ 1569 at 1571.
(d) Was possession required by all the Landlords (i.e. respondents) in this suit.
(e) Was the wishes of all the Landlords (i.e. respondents) in this suit clearly indicated in the trial.
(f) Was exhibit ‘B’ signed by all the respondents and did it clearly set out the wishes of all the respondents.
(g) Was there approval by all the Respondents that premises occupied by appellant be recovered for personal use of the 4th respondent alone.
(h) When was Exhibit ‘C’ letter of instructions signed by all the respondents (6th PW who signed in Bulgaria inclusive).
(i) Was it signed before or after issue of statutory notices Exhibit ‘E’ and ‘F’.”
The respondent in his brief, very inelegantly drafted, formulated five “Questions for Determination.” They are:-
“1. Since one of the grounds of the application for summons on which recovery of possession was being sought was ‘Nuisance’, can it be said that the plaintiffs could not lead evidence about nuisance or acts amounting to nuisance committed after the application for possession had been filed?
2. Is the appellant not estopped from complaining about the admission of that piece of evidence, that of the 26th of May, 1983, when no objection was taken at the trial by counsel and in fact he did cross-examine on it?
3. Was the learned trial Judge in error, when after reviewing the evidence adduced before the learned Chief Magistrate, and the Law cited at the trial, he found that there was sufficient evidence to support her findings of fact on several issues?
4. Since it was the defendant’s case that exhibit ‘C’ was not signed by the 4th plaintiff before the statutory notices were issued, is the onus of proof not on him to establish that fact? The plaintiffs did testify that it was consequent upon their giving their solicitor the authority that the statutory notices were issued. Sec. 124 provides a rebuttal presumption but no evidence in rebuttal was adduced.
5. Where there are two or more joint owners cannot all or a majority of them apply for possession for the use of only one of them? In England, it would appear that the emphasis is on all of the joint owners wanting to live on the premises but in Nigeria, because every joint owner is a Landlord, the courts had been laying emphasis on the consent or approval of the other joint owners.”
In his argument in the brief, the appellant contends that where there are two or more landlords, recovery of possession of the premises on ground of personal use can only be obtained if the dwelling house is required as a residence for all the landlords. In this case the premises is required for use of only the 4th respondent. He referred to and relied on the English case of McIntyre v. Hardcastle (1948) 1 All E.R. 696. He also relied on the Nigerian cases of Abudu Wahabi v. Dauda Kazeem & Ors. (1959) H.C.L.R. 93; Mudashiru Abudu v. Bello Liasu (1976) 4 C.C.H.C.J. 1145 at 114.
The appellant further contends that in view of the decision in W. M. Akale v. Olabisi Adewale (1977) 7 CCHCJ 1569 there must be a clear indication of the wishes of all the landlords before one or some of them can succeed in an action for recovery of possession. Appellant submits that in the instant case, the premises is not required for the use of all the landlords nor is there a clear indication of the wishes of all the landlords (respondents) that the premises should be recovered as exhibit “B”, the memorandum signed at the end of the family meeting of the respondents was not signed by the 6th respondent. Moreover, the 6th respondents did not give evidence in court that he consented to the use of the premises by the 4th respondent.
On the issue of recovery of possession on the ground of nuisance, the appellant contends in his brief that the leakage of gas which was complained of took place on the 26th May 1983 whereas the summons in this case was taken out on the 25th March 1983. Appellant therefore argues that it could not be a cause of action since it was post the issue of summons. On the question of packing planks in front of the premises thereby disturbing the free movement of people into and out of the premises, the appellant’s brief contends that there was no notice for abatement of nuisance served on the appellant, and that there was no sufficient evidence to show that the planks were packed there before the summons.
The final point raised in the appellant’s brief was as regards exhibit “C”. Letter of instruction to Solicitor to serve notices to quit. The appellant contends that the 4th P.W. did not sign the exhibit on the date appearing on it as he was in Bulgaria at that date. He complains that the Judge in the court below relied on S.124 of the Evidence Act without reference to its proviso.
The respondent in his brief contends that this appeal is an appeal against two concurrent decisions of two courts on findings of fact. He drew attention of this Court to the attitude of a Court of Appeal on such matters and refers to the following cases. Chief Douglas Macjaja v. Chief Ntuen Ibok & Ors. and Chief Matthew of Okoro etc, v. Chief Udom Nse & Ors. 12 WACA 148; Kuma v. Kuma (1936) 5 WACA 4; Twimaheme Adjeibi Kojo II v. Opanim Kwadwo Bonsie & Anor. 14 WACA 242-243; Ogboro Egri v. Ukperi (1974) NMLR 22.
On the issue of personal use the respondent argued in his brief that from the findings of fact made by the Chief Magistrate and affirmed by the Judge of Appeal in the High Court there were sufficient facts to support the findings. It is for the appellant who contended that all the landlords did not consent to adduce such evidence to rebutt the respondent’s evidence. The appellant could have called any of the landlords who did not give his consent to testify for him to that effect.
On the contention of the appellant that exhibit “C” was not signed by 4th defendant/respondent before the statutory notices were issued, the appellant led no evidence to contradict the evidence of the 4th P.W. that the document would take a longer time than it did in sending it to Bulgaria and returning it to Nigeria.
The respondents contend that the evidence of the plaintiffs on the issue of nuisance was not sufficiently challenged. Assuming that the gas leakage was not a deliberate act of the appellant, the nuisance by gas leakage comes within the rule in Rylands v. Fletcher (1866) L.R. 1 Exch. 265 or (1868) L.R.3 H.L. 330.
In the Court before us, counsel for the appellant and respondents adopted their respective briefs of argument and each relied on his own.
The nine issues formulated in the appellant’s brief can quite easily be condensed into three issues viz:-
1. Issue as to nuisance;
2. Issue as to where there are several landlords but possession is required for the personal use of only one – what is the law?
3. Issue as to whether exhibit “C”, the letter of instruction to Solicitor was signed by all the plaintiffs including the 6th P.W. and whether it was signed before the statutory notices were issued.
I shall deal first with the issue that raises the question as to whether recovery of possession can be ordered if only one of joint or co-landlords requires the use or occupation of the premises sought to be recovered as it seems to me the most pertinent and controversial of all the issues raised in this appeal. It is not in dispute that the title or ownership of the premises situate at No.5/7 Ajasa Street, Lagos rests in the seven plaintiffs/respondents. In other words, in the language of the Recovery of Premises Law, it is not in dispute that the seven plaintiffs/respondents are the landlords of the said premises. It is also not in dispute that one of the reasons for seeking to recover the ground floor flat of the premises is to make it available for the occupation of the 4th plaintiff who is one of the landlords. The question now is – what is the position of the law in a situation such as this?
I would like to start with the English case of McIntyre & Anor. v. Hardcastle (1948) 1 All E.R. 696 to which the appellant referred both in his brief and in the courts below. In that case two plaintiffs who were joint legal and beneficial owners of a dwelling-house to which the Rent Restriction Acts, applied sought possession of the house from the tenant under the Rent and Mortgage Interest Restrictions (Amendment) Act 1933. One of the grounds for seeking the recovery was that one of the plaintiffs required the house for occupation as a residence for herself. It was held that where there were two or more joint beneficial owners, possession of a dwelling-house was required for occupation as a residence for both or all of them. Accordingly, the action was dismissed. The decision of the County Court in England and confirmation of a part of the judgment by the Court of Appeal was based on the provisions of the Rent Mortgage Interest Restriction (Amendment) Act of 1933 already referred to in this judgment. Schedule I of the Act provides as follows:-
“A court shall, for the purposes of S.3 of this Act, have power to make or give an order or judgment for the recovery of possession of any dwelling-house to which the principal Acts apply or for the ejectment of a tenant therefrom without proof of suitable alternative accommodation (where the court considers it reasonable so to do) if… (h) the dwelling-house is reasonably required by the landlord (not being a landlord who has become landlord by purchasing the dwelling-house or any interest therein after (a certain date) for occupation as a residence for
(i) himself; or
(ii) any son or daughter of his over 18 years of age; or
(iii) his father or mother;
Provided that an order or judgment shall not be made or given on any ground specified in paragraph (h) of the foregoing provisions of this schedule if the court is satisfied that having regard to all the circumstances of the case, including the question whether other accommodation is available for the landlord or the tenant, greater hardship would be caused by granting the order or judgment than by refusing to grant it.”
In Baker v. Lewis (1946) 2 All E.R. 592 it was held that by reason of the provisions of S.1 of the Interpretation Act 1898 the word “landlord” in the opening sentence of paragraph (h) in the above schedule includes the plural where there is more than one landlord – See also Sharpe v. Nicholls (1945) 2 All E.R. 55.
I must say straight away that I have my doubts as to the soundness of the decision in McIntyre v. Hardcastle (supra). I shall be very reluctant to follow it. I cannot see how the interpretation of “landlord” to include the plural “landlords” shall defeat the recovery of a premises simply because only one of the landlords and not all require the accommodation sought to be recovered. Schedule 1 (h) (ii) provides for the recovery of the premises if “(ii) any son or daughter of his (sic theirs) over 18 years of age” requires the accommodation. It is a preposterous position where there are two or more landlords, the son or daughter of one of them requires the accommodation the landlords will be able to recover the premises but if one of the landlords requires it he will not be able to recover. I share the doubts expressed by Somervell L. J. in Baker v. Lewis (supra) on the same issue. In giving his judgment, he wished to keep open the question and said as follows at page 595;
“I am not in any way implying or suggesting that paragraph (h) (in schedule I of the 1933 Act) is only applicable in the case of joint owners where they are …desiring the dwelling-house for occupation as a residence for all of their number.”
He went on to say that he
“was inclined to the view that it had a wider application and would cover the case where A, B, and C, being joint owners put forward a claim for possession on the ground that the residence was required for occupation as a residence for A”
only. I am in perfect agreement with the above views of Somervell L.J.
In the Nigerian case of Abudu Wahab v. Dauda Kazeem & Ors. (1959) HCLR 93 de-Lestang C.J. followed the McIntyre case (supra) in its entirety. Said he,
“Where there are more than one person constituting the ‘Landlord’, they cannot bring themselves within paragraph (h) of First Schedule to the Increase of Rent (Restriction) Ordinance unless the premises are required for occupation by all of them.”
With respect, I am unable to agree with or subscribe to the conclusions of the Learned Chief Justice. In nowhere has the statute said any such thing. It is wrong to import into a statute what it has not said. In 1976 however we have a judgment of Adefarasin, C.J., in Mudashiru Abudu v. Bello Liasu (1976) 4 C.C.H.C.J. 1145 which required that the wishes of other landlords should be ascertained. The case appears to be the first attempt to shift from the shackles of the English McIntyre case on the issue. The case did not however go far enough as it ended up by upholding the decision in the McIntyre case when it said;
“No order ought to have been made for possession when it was clearly shown that the premises was required for only one of the persons entitled to possession.”
This seems to me to be a shift in the right direction. It is law blended with commonsense. Take for instance the appeal in hand. Why must the seven landlords who were the plaintiffs in the case need the occupation of the single ground floor flat before they can recover possession of the flat. If that is the law, it is a law devoid of human face, human reason and common sense. I shall not project such a law.
In W. M. Akale v. Olabisi Adewale (1977) 7 C.C.H.C.J 1569, Dosunmu, J. (as he then was) went slightly further than the decision of Adefarasin, C.J., in the Mudashiru case (supra) by requiring “a clear indication of the wishes of the rest” of the landlords before possession should be decreed to only one of them. It is my view that this is a shift in the right direction.
In this case on appeal, all the seven beneficial owners of the property situate at No.5/7 Ajasa Street, Lagos are plaintiffs on record. There is no evidence that any of the plaintiffs has expressed a contrary intention to the bringing and prosecution of the case. There is evidence that they held a family meeting where they decided to recover the ground floor flat from the defendant for the use of one of them (4th plaintiff).
They (the plaintiffs) prepared a memorandum to this effect – exhibit “B”. It is my view that it is immaterial whether only one or more of the plaintiffs signed exhibit “B” which contains the decision or resolution or, if you like, the wishes of the plaintiffs. In fact, Exhibit “B” is not necessary for the successful prosecution of the case. The wishes of the owners of the property can be conveyed to the court by the Oral evidence of one or more of the plaintiffs who testified in court. In this case, the wishes of the owners of the property were sufficiently testified to by P.W.s 1 and 3. In the words of Dosunmu J., there was “a clear indication of the wishes of the rest” of the owners of the property i.e., the other landlords.
I have already expressed my reservations on the decision in the McIntyre case (supra) and have also expressed my support for the reservations of Somervell L.J., on a similar issue in Baker v. Lewis (supra). I am of the view that the correct position of the law in Lagos State is that if it is the wishes of the landlords that their premises should be recovered for the use or occupation of one or more only of their number, the landlords can recover the said premises. The important thing is that the landlords shall be in unanimity in their wish or intention to recover the premises. In this case on appeal there are seven owners or landlords of the property. The seven of them are plaintiffs on record. The evidence is that they had a family meeting in which they decided to recover the ground floor flat for the use of the 4th plaintiff. Only five of them however signed their resolution. One of them who did not sign (i.e. 4th plaintiff) gave evidence in court in support of the plaintiff’s case. The remaining one who did not sign the resolution (exhibit “8”) did not express a contrary intention to recovering the premises for the use of the 4th plaintiff. The defence did not call him to give evidence in its favour. The mere fact that some of the plaintiffs did not sign the resolution does not affect their common purpose to recover the flat for the use of one of them.
In 1976 the Rent Control and Recovery of Residential Premises Edict No.9 of 1976 was promulgated by the Lagos State Government. The Edict has been extensively amended by The Rent Tribunals (Abolition & Transfer of Functions) Law 1981 as its name implies, the main provision of the 1981 Law was to abolish the Rent Tribunal and transfer their functions to the Magistrates Court. The provisions of the Edict No.9 of the 1976 which were not amended by the Rent Tribunals (Abolition & Transfer of Functions) Law 1981 (hereinafter referred to in this judgment as the “1981 Law”) still remain operational. It is amazing that counsel on both sides did not refer to these two legislations which regulate the recovery of premises in Lagos State. S.2(2) of the 1981 Law provides that all references to Rent Tribunal and Chairman in the Edict No.9 of 1976 shall be construed as references to “Magistrate Court and High Court respectively.” S.25 (1) (a) of Edict No.9 of 1976 gives the tribunal (now the Magistrate’s Court or the High Court) power or jurisdiction to make an order for recovery of possession of any premises or order the ejectment of a tenant under conditions specified in the second schedule of the Edict. For the purpose of this appeal paragraph (i) of schedule II is relevant. It provides as follows:-
“A tribunal (now Magistrate’s Court) shall ………. have power to make or give an order for ejectment for recovery of possession of any premises to which this Edict applies or for ejectment of a tenant therefrom ……. if
(i) the premises are reasonably required by the landlord for occupation for:-
(i) himself: or
(ii) any son or daughter of his over 18 years of age; or
(iii) his father or mother; “(Italics and brackets mine)
By S.40 of the Edict “landlord” is defined as follows:-
“Landlord in relation to any premises means the person entitled to the immediate reversion of the premises or if the property therein is held in joint tenancy or tenancy in common, any of the persons entitled to the immediate reversion and includes:-
(a) the attorney or agent of any such landlord; …”
(Italics mine for emphasis)
Thus, under the law in operation at the time this case was done in the Magistrate’s Court and indeed up to this moment, a “landlord” includes any person or persons or the agent or attorney of any such person or persons entitled to the immediate reversion of the said premises. I am of the view and I so hold that any of the plaintiffs who are the landlords can recover the premises for the use or occupation of any or some of their members in the absence of opposition by any of them.
I shall now deal with the issue of nuisance. It seems to me that the appellant is not making any issue as to whether the gas leakage or placing a plank in front of the premises at 5/7 Ajasa Street, Lagos is a nuisance to an adjoining occupier.
The issue raised in his brief is whether the admitted nuisance was prior to or post to the issue of summons. If it is post or after the summons was issued, counsel argues, it cannot found a cause of action. Part of the evidence on nuisance by P.W.1 is as follows:-
“The defendant constitutes himself into a nuisance in the premises. He uses gas cooker and he allowed escape of gas for (sic) about four times.
On a particular occasion I had to call a (sic) Fire Brigade on 26th May 1983 as there was no one in the flat occupied by Mr. Coker, and the rate of explosion of the gas was alarming and caused a stampede …”
(Italics mine)
P.W.3 said that the defendant “always leaves his gas leaking and as a result on a particular occasion the Fire Officers were called in to the rescue.” Nothing was said by the appellant in his evidence about the gas leakage. The Court was therefore left with only the evidence of P.W.s 1 and 3 on the issue. There is evidence that there was a gas leakage on four occasions. The leakage on the 26th May 1983 was only one of the four leakages. That leakage seems to have been mentioned specifically because of the explosion. There is nothing to show that the other three leakages were post summons. When the plaintiffs prepared their claim on the 25th March 1983 they stated that one of the grounds for seeking to recover possession was on the ground of nuisance. The nuisance could be for the gas leakage, it could be for the planks, it could be for both. The defence, if it wished could have asked for further and better particulars of the nuisance and the dates the acts of nuisance were committed. He did not ask; he did not cross-examine on it; he did not lead contrary evidence to show that all the four leakages were after the summons was issued. There is no basis for the appellant to ask the court at this stage to accept that all the four leakages took place post summons. The contention is not based on the evidence before the court and therefore fails.
Another act of nuisance complained of was the packing of planks in front of the premises thereby disturbing the people visiting the premises. No date was ascribed to the packing or placing of planks. There was no cross-examination of P.W.1 on it. A party in a case gives evidence, which supports his cause of action. If the defence holds a contrary view it is for the defendant to challenge the evidence in cross-examination or to give contrary evidence. In the absence of any challenge or such contrary evidence, the defence cannot speculate as to date in address or on appeal.
It must be realised that cases under the Recovery of Premises Law are a peculiar form of action. The form of the claim is set out in one of the forms under the Recovery of Premises Law. A plaintiff merely fills the gaps as contained in the form. At the end of the form he sets out his grounds for the application. In this case one of the grounds as set out is “Nuisance.” A plaintiff is not required to state the date the nuisance was committed unless, of course, the defence asks for it before the commencement of hearing. I hold the view that the gas leakages other than the one of 26th May 1983 and the placing of planks in front of the premises were among the acts of nuisance that gave rise to the cause of action.
The final point that remains to be considered in this appeal is as to when exhibit “C” the letter of instruction to the Solicitor was issued or signed by the plaintiffs/respondents. The law is that any such letter of instruction to the solicitor must be issued before the Notice to Quit is issued by the Solicitor otherwise the solicitor has no authority to act. Any notice to quit or notice of intention to apply to recover possession issued by any such solicitor before the letter of instruction is null and void and of no effect.
Exhibit “C” the letter of instruction to solicitor was issued on (or dated) 3rd November 1982. Exhibit “E” the notice to quit was issued (or dated) 22nd November 1982. The letter of instruction (exhibit “C”) was therefore issued some 19 days before the Notice to Quit was issued by the solicitor.
Another prong of counsel’s attack on the letter of instruction is that one of the signatories (4th plaintiff) was in Bulgaria at the time the letter was issued. Counsel argues that he signed after the notice to quit was issued. I have no doubt in my mind that P.W.6 and the other plaintiffs did not sign exhibit “C” on the same day. He signed exhibit “C” in Bulgaria while the other plaintiffs signed in Lagos, Nigeria. But the question is – did all of them (whether in Bulgaria or Nigeria) sign exhibit “C” before the notice to quit (exhibit “E”) was issued on the 22nd November 1982. There is nothing before the Court from which the Court could infer that any of the plaintiffs signed exhibit “C” after the Notice to Quit was issued. On the contrary, the evidence before the Court is that they signed Exhibit “C” before the Notice was issued. The document ought to speak and does speak for itself. According to the 4th plaintiff, the other plaintiffs signed the document in Nigeria and sent it to him in Bulgaria. He signed it and returned the same to the other plaintiffs. There is nothing to show that he signed it after the Notice to Quit was issued. He who asserts must prove. A Court does not go on a voyage of speculation imagining things which either happened or might have happened or did not happen. It is the defendant/appellant who seeks to falsify exhibit “C” that should lead credible evidence to that effect. He has failed to do so.
Before I conclude this judgment I would like to say a word or two about the lack of due care and attention with which the briefs in this appeal were prepared and filed. The appellant’s brief contained not less than fifteen grammatical errors in six pages of the brief. Such numerous grammatical mistakes cannot be written off on the altar of the usual excuse – “typographical error”. It shows utter lack of care in the preparations of the brief. Briefs, like pleadings and every other document prepared for filing in court are serious and I may add solemn documents. They require great industry, great concentration and great care and attention in their preparation, vetting and proof-reading before they are filed in Court. A brief or pleading which is replete with grammatical errors is irksome to the reader and annoying to the Judge. I can do no more in this direction than repeat the words of my learned brother, Tobi, J.C.A. in Joshua Fumudoh & Anor. v. Dominic Aboro & Anor. (1991) 9 NWLR (Pt.214) 210 at 225 where His Lordship had this to say:-
“All I have done is send one message to counsel in the preparation of court processes. So much care is required and so much care should be taken. A Court process is not just like a letter to a friend where one can afford to slip here and there with little or no adverse effect. A Court process is a sacred and most important document which must be thoroughly done and thoroughly finished. The adverse party, as usual in the profession will always open his ears and his eyes very wide to pinpoint any error and capitalise on same. He is always on the toes of the opponent to ‘devour’ him. But surprisingly, learned counsel for the appellant did not see the points. It is possible he saw them and ignored them, knowing that they do not in reality detract from the merits of the objection as such.”
If my learned brother’s message has not got to counsel, I hope that mine will reach them.
In the final analysis and for the reasons given above or for a combination of some of them this appeal fails and is hereby dismissed. The respondents shall have the costs of this appeal which I fix at N500.00.
Other Citations: (1992)LCN/0143(CA)
