Alhaji Isola Are Ogele V. Alhaji Banni Gaa Budo Nuhu (1997)
LawGlobal-Hub Lead Judgment Report
ABDULLAHI, J.C.A.
The appellant in this appeal was a plaintiff before the trial Upper Area Court Ilorin, claiming a piece of land. At the end of the trial after hearing evidence from both parties, the Upper Area Court dismissed the appellant’s claim.
The appellant was not happy with the judgment of the Upper Area Court and he appealed to the High Court of Kwara State. The appellant initially filed eight grounds of appeal before the High Court.
All necessary steps and processes for the hearing of the appeal were completed and the appeal was fixed for hearing when the appellant sought leave of the High Court by way of motion on notice to file and argue an additional ground of appeal as ground number nine.
The motion was moved. It was opposed by the present respondent. In opposing the motion, the respondent filed two counter affidavits in answer to two affidavits filed in support of the motion.
At the end of the day, the motion was granted by the High Court and the appellant was given leave to file and argue the additional ground of appeal.
It so happened that the additional ground of appeal raised a constitutional issue which goes to the jurisdiction of the trial Upper Area Court. In the light of that the learned senior counsel for appellant decided to argue that lone additional ground, without touching any of the eight original grounds filed.
The learned counsel for respondent, vehemently objected to the method adopted by the learned senior counsel, but the High Court in a short ruling overruled the objection of the learned counsel for respondent and agreed to hear the learned senior counsel’s argument on the additional ground only.
It may well be necessary to reproduce this short ruling of the High Court on this issue because it is a subject of a cross-appeal by the respondent. It reads thus:
“Court There is no doubt that the issue whether the decision of the UAC is nullity is fundamental and its decision on it (sic) is capable of disposing of the entire appeal.
It will not make sense to hear the entire appeal and only write judgment in respect of only one ground.
We would rather confine ourselves to the additional ground and consider the same, one way or the other.
Mr. Akintoye, Jr, is hereby overruled and should proceed to respond to the learned SAN’s argument.
So, that was what happened, arguments on the additional ground were advanced by both parties. At the end of the day, in a reserved judgment delivered on 16/5/96 by the High Court, Ibiwoye, Belgore JJ, the court dismissed the ground of appeal as lacking in merit. The last portion of the judgment reads as follows:-
“By the present position we are unable to agree with the learned senior advocate that the challenge of a court record may be through an affidavit. Rather we are in full agreement with the submission of the learned counsel for the defendant/respondent that it will be ultra vires for the appellate court to look outside the record of proceedings of the lower court to make a decision in the absentee of a challenge of the court record. It is our considered view therefore that the proceedings of the lower court on the day of its judgment is as recorded on pages 48 to 64 of the court record.
For the foregoing reasons we find that this ground of appeal has no merit and it is hereby accordingly dismissed.”
Their Lordships made no further mention of the fate of the original 8 grounds of appeal filed and also made no further order as to the fate of the decision of the trial Upper Area Court. They left everything at large.
The appellant was not happy with the decision and he appealed to this court. As, I mentioned earlier, the respondent was also not happy with an earlier ruling of the High Court, he also cross-appealed on that issue.
The parties filed their briefs of argument as well as reply briefs for both the main appeal and the cross-appeal.
Some preliminary objections were raised by both sides. The appellant’s preliminary objection was centred on the grounds of appeal as well as issues for determination formulated by the respondents, while the respondent’s objection was to the effect that no prior leave of court was sought and granted to adopt the unknown procedure adopted by the appellant to argue the appeal before the High Court.
I considered both preliminary objections and I found no substance in them. None of them was grounded on any good ground and I overrule both of them.
Now for the appeal and the cross-appeal.
The appellant formulated one over loaded issue for the determination of the appeal.
It reads as follows:-
“Considering the clear and mandatory provisions or section 33(3) of the Constitution of the Federal Republic of Nigeria 1979 which remains unamended and unaltered, section 29 of the Area Courts Edict of 1967 coupled with the clear averments in the affidavits of the appellant and the unequivocal admissions of the averments in the counter-affidavits of the respondent to the effect that the trial Upper Area Court delivered its judgment in chambers on 23/1/96, whether the lower court was right in dismissing the additional ground of appeal on the ground that the record of the lower court was not challenged.”
For his part, the respondent formulated 3 issues for the determination of the appeal. They read as follows:-
“1. Whether by the conduct of the appellant and in the absence of a specific challenge, an appellate court can rely on facts and evidence outside those contained in the compiled record of proceedings before it in its determination of an appeal and thereof declare unconstitutional the delivery in chambers the judgment of the Upper Area Court.
- Assuming that the Upper Area Court, Ilorin delivered its judgment in chambers but considering the circumstances and antecedents of this case would the lower court be right to nullify such judgment of a native court (not of record) in the interest of doing substantial justice?
- What is the effect of refusing to argue some grounds of appeal in the course of hearing and determining a substantive appeal.”
I think I can start with the cross-appeal. It arose from a ruling delivered earlier in time than the judgment on which the main appeal arose.
In his submission on this issue, the learned counsel for respondent/cross-appellant pointed out that originally eight grounds of appeal were filed that leave was granted to the appellant to file and argue an additional ground of appeal, thus making nine grounds of appeal to be argued. That the learned counsel for appellant argued only the additional 9th ground of appeal. That he raised objection to this approach but was overruled by the court and was called upon to reply. Learned counsel submitted that in the light of this situation the action of the learned senior counsel should be regarded as unilateral and since he decided not to canvass and adduce any argument on the remaining eight grounds, then the appellant should have been regarded or deemed to have abandoned the remaining 8 grounds of appeal.
Learned counsel went on to draw parallels between the position of pleadings in a trial and grounds of appeal in the determination of an appeal and submitted that the same consequent effect would arise if a party at a trial adduces evidence but left untouched some paragraphs of his pleadings. Legally the untouched paragraphs of the pleadings would be regarded as having been abandoned. That the same position would arise if a party advanced no arguments on grounds of appeal filed. The grounds of appeal would be regarded as having been abandoned.
Learned counsel cited the cases of Adesanya v. Otuewu (1993) 1 SCNL 77 at 88; (1993) 1 NWLR (Pt.270) 414; Ndiwe v. Okocha (1992) 7 SCNJ 355; (1992) 7 NWLR (Pt.252) 129; Ehalor v. Osayande (1992) 7 SCNJ 217; (1992) 6 NWLR (Pt.249) 524 in support.
Learned counsel submitted that the lower court was in error to allow the learned senior counsel to argue only the additional ground of appeal, thus condoning the approach of the learned senior counsel. He urged that the cross-appeal be allowed and the whole appeal both before the lower court and this court be dismissed.
In his response, the learned senior counsel for appellant submitted that the decision of the lower court on this issue is in accord with the decisions of this court and the Supreme Court. He cited in support the cases of Achineku v. Ishagba (1988) 4 NWLR (Pt.89) 411; Oviasu v. Oviasu (1973) NSCC 502; (1973) 11 S.C. 315; Nigeria Arab Bank Ltd. v. Barri Eng. Nig. Ltd. (1995) 8 NWLR (Pt.413) 257; N.B.N. Ltd. v. Alakija (1978) 9 – 10 S.C. 59. Learned senior counsel maintained that this has been the trend in all appellate courts, particularly when an order of retrial of a case is to be made.
It is noteworthy to refer to the decision of the Supreme Court in the case of N.B.N. Ltd. v. Alakija (1978) 9 – 10 S.C. 59. In this case twenty (20) original grounds of appeal were filed and an additional ground as 20(a) was later filed which challenged the propriety or otherwise of commencing the suit by way of originating summons in view of the hostile nature of the proceedings. The Supreme Court picked the arguments on ground 20(a) and confined its judgment on it. The court at page 79 had this to say:
“It follows that ground 20(a) of the ground of appeal must succeed. We have already stated that the appellant asked for a retrial on this ground. Having regard to the order we intend to make, we do not think it would be wise to pronounce the other grounds of appeal notwithstanding so much learning brought by both learned counsel into the argument as this may prove to inhibit the trial court on the issues raised in the grounds which may be the issues he might have to decide.”
Before I finish with the cross-appeal, I must also observe that despite the position taken by the lower court on this issue at the time it allowed the appellant to file and argue the additional ground 9, it is clear that at the end of the day, the lower court reversed its position on the issue by dismissing the ground, thereby giving judgment so to speak in favour of the cross-appellant. This in my view had rendered the cross-appeal a mere academic exercise. For these reasons, I find no merit in the cross-appeal and accordingly dismiss it.
Now for the main appeal, as I mentioned earlier only one issue was formulated by the appellant which in effect is whether the judgment of the Upper Area Court delivered in chambers on 23/1/96 in contravention of the provisions of section 33(3) of the 1979 Constitution as amended as well as section 29 of the Kwara State Area Courts Edict 1967 is a nullity.
It is the decision of the lower court, that the record of proceedings of the trial Upper Area Court on the day of the delivery of the judgment did not prima facie show that the judgment was infact delivered in chambers. This point was gallantly conceded to by the learned senior counsel for appellant.
The lower court also decided that no formal challenge of the record of proceedings was made by the appellant; therefore it would be wrong for it to go outside the unchallenged record of the Upper Area Court to reach its decision.
Now, it will be instructive to reproduce relevant portions of the proceedings in question on 23/1/96. The opening of the proceedings for the day started as follows:-
“The above case No. CVF/23/91 re-opens today for delivery of judgment No change in the membership of the court. The plaintiff and his counsel are absent The defendant is present and counsel Biola Adimula (Mrs) appears for him, holding brief of counsel Akin Akintoye (Jnr) for the defendant Court: – Anything known about the plaintiff?
Court Clerk Bolanle Ijaodola: – The plaintiffs Counsel Dele Ogundele was here this morning and promised of coming back but he is not yet to come back up till now.
Counsel Biola:- The plaintiffs counsel was here this morning and even told me he was coming back but he is yet to be here, Counsel Dele Ogundele.
Court:- The court would proceed to deliver its judgment. A formal order shall be issued and served on the plaintiff on this judgment.”
After reading the judgment of the court. The following follows:”
RIGHT OF APPEAL:
There is right of appeal to the High Court of Justice, Ilorin within 30 days.
(SGD) M.N. Idris (SGD)-Abu Olarewaju (SGD)-J.S. Kolade
Member Judge Member
23/1/96 23/1/96 23/1/96
Counsel Biola: We are grateful for the well considered judgment. The defendant has spent N221.00k out of pocket expenses. Apart from that we have made 31 appearances in this matter. We ask for N5,000.00 cost
Court: We award N500.00 cost in favour of the defendant.
Right of appeal: There is right of appeal to the High Court of Justice, Ilorin within 30 days.
(Sd) – M.N. Idris (Sgd)-Abu Olarewaju (Sgd) – J.S. Kolade
Member Judge Member
23/1/96 23/1/96 23/1/96
Now, clearly on the face of this record reproduced, there is nothing to show or even suggest that the delivery of judgment and the other proceedings were done in chambers.
But, there are other authentic documents which brought out a totally different picture. These are the two affidavits and two counter affidavits, filed by the parties in a motion on notice to file and argue an additional ground of appeal; which the lower court considered and granted and as a result ground No.9 came into being. This additional ground No.9 is the one that challenged the legality of the proceedings of the Upper Area Court, having been conducted in chambers in contravention of the provisions of section 33(3) of the 1979 constitution as well as section 29 of the Kwara State Area Courts Edict 1967.
I think to get the record straight it will help if I setout the relevant paragraphs of both the affidavits and the counter affidavits.
Paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 of the affidavit No. I in support of the application reads as follows:-
“(4) That throughout the trial of this case I always followed the said Alhaji Are Ogele to the Upper Area Court, Ilorin.
(5) In particular, I followed the said Alhaji Are Ogele to Upper Area Court on 23/1/96 when the judgment of the said court was purportedly delivered.
(6) That the said Alhaji Are Ogele and myself were in the courtroom together with Dele Ogundele of counsel between 9.00a.m. and 11.00am.
(7) That when the court did not sit as at 11.00am., both Alhaji Ishola Are Ogele and Dele Ogundele of counsel left the court premises.
(8) That Alhaji Ishola Are Ogele and Dele Ogundele gave us specific instruction to stay within the court-room in case another date would be given for the judgment.
(9) That I remained inside the courtroom of the lower court and to the best of my knowledge that the court did no sit in the open court throughout.
(10) That when it was past noon on the said 23/1/96, I noticed the defendant going to and entering the chambers of the Judges of the lower court.
(11) That later in the day, I saw the defendant coming out of the chambers and rejoicing.
(12) That I also heard the defendant saying that judgment had been delivered in his favour by the lower court.
(13) That I was surprised to see the defendant rejoicing and proclaiming that judgment was given in his favour since the court did not sit in the open.”
Paragraphs 5, 6, 7, 8, 9, 10 and 11 of affidavit No.2 in support of the application read as follows:-
“(5) That I was in court together with the appellant and one Saidu Aremu on 23/1/96 when judgment was to be delivered.
(6) That I, the appellant and the said Saidu Aremu got to the lower court around 9.00a.m. on the 23/1/96 and remained in the court-room/premises until around 11.00a.m.
(7) That when the court did not sit at about 11.00a.m., I decided to leave the court premises as I had to travel to Lagos that day to attend to a case the following day at the High Court.
(8) That the appellant told me and I verily believed that he too had an urgent family matter to attend to, thereby leaving the court premises.
(9) That it was my belief that the court would not sit on that day and that judgment would be adjourned as usual.
(10) That the appellant and myself instructed Saidu Aremu to remain within the court-room so as to take the date of adjournment and bring same to our chambers and the appellant.
(11) That I was surprised when Saidu Aremu told me on or about 25/1/96 and I verily believed that the lower court did not sit in the open court throughout 23/1/96 but that judgment was delivered in the judges’ chambers.”
Then paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 of counter affidavit No.1 read as follows:
“(1) That I am the defendant/respondent in this case.
(2) That by virtue of this I am very conversant with the facts of this case.
(3) That on 23/1/96 I was at the Upper Area Court Ilorin for the judgment of the court in this case.
(4) That when I got to court, I saw the plaintiff and his counsel and some of his followers in court.
(5) That the court did not sit until 11.00a.m. on the said day.
(6) That the court Registrar informed us and the plaintiff and all other people in the court that the court will be sitting at 11.00a.m. because the presiding Judge went to hospital that morning.
(7) That at 11.00a.m. the court Registrar called me and my counsel and all parties interested in the case to come into the Judges’ chambers for the judgment.
(8) That by that time the plaintiff, his counselor any of his followers were nowhere to be found.
(9) That the court decided to stand down the case to enable the Registrar look around for the plaintiff.
(10) The Registrar and myself looked all round the court premises for more than one hour in search of the plaintiff or any of his followers but they were nowhere to be found.
(11) That the Judgment had already been adjourned for about three times before the said 23/1/96 and the court did not want to adjourn the judgment any further.
(12) That one of the Judges used to come from Saare and this was one of the days he was around.
(13) That when the plaintiff did not turn up after more than one hour, the judgment was delivered.
Then paragraphs (i) (ii) (iii) (iv) (v) and (vi) of counter affidavit No.2 read as follows:-
“(i) On the said 23/1/96 the court did not sit on time.
(ii) That she was Mr. Dele Ogundele, counsel to the appellant and the appellant himself with some of his followers in court.
(iii) That at about 11.00a.m. the court started sitting in chambers
(iv) That the court as was then constituted could not sit in the open because the presiding Judge was indisposed.
(v) That all the matters listed for that day and previous days were being heard in the chambers.
(vi) That if the judgment had not been delivered by the court as was then constituted, the ease would have to be started de novo.”
These are the affidavits and counter affidavits, the appellant claimed had clearly brought out the true record of what actually transpired on that day of 23/1/96 and not what was reflected in the record of proceedings. It is further the submission of the learned senior counsel that from the depositions in the affidavits of the parties, there is a consensus ad idem on the facts that the trial Upper Area Court sat in chambers on 23/1/96. In any case, there is a clear admission by the respondent in the counter-affidavits that the Upper Area Court sat in chambers on 23/1/96 and it required no futher proof. Learned counsel cited the case of Ajuwon v. Akanni (1993) 9 NWLR (Pt.316) 182.
It is the contention of the learned counsel that the lower court was in error to hold that the record of proceedings should have been challenged inspite of the admitted facts before it.
Learned senior counsel maintained further that admissions in the counter-affidavits constitute an admission against interest and should be regarded as evidence of facts against the respondent. The case of Anason Farms Ltd. v. NAL Merchant Bank (1994) 3 NWLR (Pt.331) 241. On the other hand, the learned counsel for respondent maintained that the lower court was correct for refusing to go outside the record of the Upper Area Court, and that it was bound to decide the appeal on the record before it. Learned counsel still maintained that there are no sufficient facts or materials convincing enough to justify the allegation that judgment of the Upper Area Court was given in chambers.
Learned counsel referred to the decision of the Supreme Court in the ease of Ibero v. Ume-Ohana (1993) 2 SCNJ 156 at 171 – 172; (1993) 2 NWLR (Pt.277) 510 where Nnaemeka-Agu J.S.C. said:-
“It is of course a rule of great antiquity that the only proof of the content of a court’s proceeding in writing is the proceeding itself, or where permissible, a certified true copy thereof, produced.”
It is further the submission of the learned counsel for respondent that there is a presumption of regularity and genuiness in every record of proceedings produced and that in this case the assumption that the court conducted its affairs in open court and in public as stipulated in section 33(3) of the 1979 Constitution and section 29(1) of the Kwara State Area Courts Edict, 1967 are satisfied. That to rebut this presumption, certain steps must be taken which should come by way of challenge; which also must be backed up by facts which must be cogent, direct and convincing and properly presented.
I agree with the learned counsel that the authenticity of record of proceedings of a court should be given the necessary regularity it deserves. But presumption of regularity however is not absolute. It can be rebutted with facts which are cogent, direct and convincing.
In this case both the appellant and the respondent filed and heavily relied on affidavits and counter-affidavits in the motion argued before the lower court for leave to file additional ground of appeal. The lower court used and relied on the same documents to grant the application. I can not understand the philosophy of the lower court to turn round again to say that these documents it relied upon and used in the course of hearing the appeal before it are not relevant documents again. I think that view is perverse. A record of appeal generally is what is compiled by the appellant normally or in some cases what both parties settled and agreed as the record of appeal. This can be the whole proceedings of the trial court including any other relevant documents filed before the appellate court in the process of the determination of the appeal.
In this case, the additional ground of appeal filed by necessity became part of the record of appeal so was all other documents filed and used to facilitate the ruing of the additional ground of appeal, which includes the supporting affidavits and the counter-affidavits.
There is no gainsaying the fact that the contents of the affidavits and the counter-affidavits disclosed cogent and direct facts to beat down the integrity and genuiness of the proceedings of the Upper Area Court on 23/1/96 to its lowest level. Not only that the contents of the affidavits brought out clearly that the judgment of the court and other proceedings for that day were conducted in chambers, but worst of all the record was manipulated by showing that the presiding judge Abu Olarewaju was present and participated; while in actual fact he was indisposed as clearly stated by the respondent himself in his affidavit. I wonder what more challenge of the record the lower court and the learned counsel for respondent want in this case.
In the circumstances, I have no doubt in my mind that the delivery of the judgment and other proceedings of 23/1/96 were conducted in chambers by the Upper Area Court. I also have no doubt that the record of proceedings for that day was manipulated by showing on the face of the record that the presiding Judge Abu Olarewaju sat on that day with the other two members, when in fact he was not even around. The next point to be considered is the effect of this sitting in chambers to deliver the judgment.
The learned senior counsel for appellant maintained that the action of the Upper Area Court was in violation of section 33(3) of the 1979 constitution as well as section 29(1) of the Kwara State Area Courts Edict 1967, the judgment is therefore null and void.
Section 33(3) of the 1979 Constitution as amended reads as follows:
“The proceedings of a court or the proceedings of any Tribunal relating to the matters mentioned in sub section 1 of this section (including the announcement of the decisions of court or Tribunal) shall be held in public.”
Section 29(1) of the Kwara State Area Courts Edict 1967 provides as follows:
The room or place in which an Area Court shall sit to hear and determine any proceedings shall be an open and public court to which the members of the public shall have a right of access while they shall be of good behaviour to the extent to which the capacity of the court shall allow.”
These provisions are very clear and need no further elucidatives.
Learned senior counsel also referred to a number of decided authorities by the Supreme Court including Oviasu v. Oviasu (1973) 8 NSCC 502; (1973) 11 S.C. 315; NAB. Ltd. v. Barri Eng. Nig. Ltd. (1995) 8 NWLR (Pt.413) 257 in support.
The learned counsel for respondent expended a lot of energy and scholarship to show that the provision of section 33(3) of the constitution does not apply to Area Courts, which according to him are not courts of record. I think this argument is completely misconceived.
Area Courts are courts of record like any other court, otherwise, why have we been talking about record of proceedings and challenge to the record. Area Courts, particularly Upper Area Courts have jurisdiction to adjudicate on civil and criminal matters and have powers to impose fines and sentences as well as order the confiscation of properties. They are also vested with jurisdiction to execute their own judgments as well as judgments of superior courts. See sections 18, 22, 38, 39, 40 and 41 of Area Courts Edict 1968.
There is also no gainsaying the fact that Area Courts are creatures of statute. To crown it all, Area Courts are recognized as existing courts by the 1979 Constitution. See section 6(5)(h) which provides as follows;
“6(i) The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation.
(5) This section relates to-
(h) Such other courts as may be authorized by law to exercise jurisdiction at first instance or on appeal on matters with respect to which a House of Assembly may make laws.”
I can not also accept the arguments of the learned counsel for respondent that a breach of the provision of section 29 of the Kwara State Area Courts Edict amounts to procedural breach and not substantive. The provision of this section forms part of a substantive law per se and is not made pursuant to the rules of Court.
At this stage, I may refer to one or two decisions of the Supreme Court on this point.
In the case of Oviasu v. Oviasu (1973) 8 NSCC 502 at 508; (1973) 11 S.C. 315, the Supreme Court held;
“The hearing of this divorce case in the chambers of the learned trial court Judge was not made a specific issue in the Grounds of Appeal filed before us. During the arguments however, our attention was drawn to it by the counsel for the appellant as being irregular. As the counsel for the respondent did not apply for the hearing of the case in chambers there was nothing he could say…….. We regard the irregularity as being fundamental; which touches the legality of the whole proceedings including the judgment and the incidental orders made thereafter. We therefore hold that all that happened in the Judge’s chambers did not constitute a regular hearing of an action in a court. In view of the conclusion we have reached, we do not think any useful purpose will be served in determining the points canvassed before us. The trial held in the chambers of the Judge is not in accordance with the law and we shall therefore set aside the judgment and orders made by the trial Judge.”
There is also the case of NAB. Ltd. v. Barri Eng. Nig. Ltd. (1995) (Pt.413) 257 at 276 per Ogundare, J.S.C.
“A Judge’s chambers is not one of the regular courtrooms nor is it a place to which the public have right to ingress and egress as of right except on invitation by or with permission of the Judge …………………………………….
The facts before us show that counsel for the parties were already seated in the regular court-room waiting for the Judge to sit to deliver judgment when they were called into chambers and the judgment was delivered by the learned trial Judge. There is in this case a clear breach of the mandatory provisions of section 33(3) of the 1979 Constitution and Order 36 Rule I of the High Court Rules of Lagos State ………………..
To suggest that because the hearing was in open court, the delivery of judgment in chambers is a technicality as no miscarriage of justice was occasioned thereby is to beg the issue. The delivery of judgment is, in my respective view part of the hearing of a cause or matter.”
With the clear statement of the law expounded in these two decisions, I am left in no doubt that the irregularity committed by the Upper Area Court being fundamental, which touches the legality of the whole proceedings of 23/1/96 including the judgment and the incidental orders made thereafter did not constitute a regular hearing and are liable to be set aside.
In the circumstances, the lower court was in grave error in dismissing the additional ground of appeal as it did. The lower court should have declared the proceedings of the Upper Area Court dated 23/1/96 including the judgment a nullity.
In the circumstances of this case and by virtue of the provision of section 16 of the Court of Appeal Act, I allow the appeal and set aside the decision of the High Court including the order for costs. I also declare the proceedings of the Upper Area Court including the judgment a nullity. I order a retrial of the case before another Upper Area Court of Kwara State differently constituted. I award the sum of N1000 as costs to the appellant.
I must commend both learned counsel in this appeal for the hard work and thoroughness they exhibited in the preparation of their briefs and oral presentation.
Other Citations: (1997)LCN/0287(CA)
