Alhaji Liadi Busari & Ors V. Oba Yishau Goriola Oseni & Ors (1992)
LawGlobal-Hub Lead Judgment Report
TOBI, J.C.A.,
This matter moved through two hands. One is Ayorinde, J. (as he then was). The other is Adeniji, J. Ayorinde, J.(as he then was) set the ball rolling. Adeniji, J. completed the matter by his ruling of 27th July, 1988.
The facts of the case are not only tedious but complicated and long the journey of the case more so. Let me try to summarise the facts. The parties to this appeal, with the exception of the 9th defendant/respondent, are members of the Iba Community. The 1st defendant is the Oba of Iba Community.
In 1974, a parcel of the Iba Community land was compulsorily acquired by the Federal Military Government for the purpose of the Ojo Military Cantonment. Compensation of N9,064,986.00 was paid to the solicitor. He is the 9th defendant/respondent. The 9th defendant/respondent, after deducting his professional fees, paid the balance to the 1st to 8th defendants/respondents.
The plaintiffs/appellants, who claim that part of their land of the Iba Community land was compulsorily acquired, demanded their share of the compensation money. The respondents refused, contending that the appellants had no right to any share of the community money. Being aggrieved, they filed an action at the High Court of Lagos State. In the light of the issues raised in the appeal, it is necessary to state in plain the reliefs sought by the appellants:
“(a) A declaration that the sum of N9,064,986.00 received by the 9th defendant from Federal Ministry of Defence vide a Central Bank Cheque No.511397 being compensation money for the compulsory acquisition of the Iba Community Land vide Notice of Requisition No. 1727 published in the Official Gazette of the Federal Government of Nigeria No.58 in Vo1.61 dated 14th November 1974 was received for the benefit and enjoyment of the Iba Community in the Lagos State.
(b) A declaration that the sum of N4, 532,493.00 paid by the 9th defendant to the Ado Family of Ado Village in the Lagos State through the 7th and 8th defendants being one-half of the compensation money referred to in paragraph (1) above belong to members of the Iba Community and as such was received and kept by 7th and 8th defendants as Trustees thereof for the benefit and enjoyment of the members of the Iba Community in Lagos State.
(c) A declaration that the sum of N4, 532,493.00 paid by the 9th defendant to 1st – 6th defendants being the other half of the compensation money referred to in paragraph (1) above belong to the entire members of Iba Community in Lagos State and such was received as Trustees of the said money for the benefit and enjoyment of the aforesaid members of Iba Community.
(d) An Order directing the 7th and 8th defendants to pay into Court the said sum of N4, 532,493.00 for the benefit and enjoyment of the aforesaid members of the Iba Community.
(e) An Order directing the 1st-6th defendants to pay into Court the said sum of N4, 532,493.00 had and received by them jointly for the benefit and enjoyment of the entire members of the Iba Community.
(f) An Order for inquiry into the nature and extent of the interests of the Iba Community in the said acquired land and for payment to the respective members of such sum or sums of money out of the monies paid into Court as may represent a fair and equitable compensation for their interests in the acquired land.
In the interim, the appellants through their counsel filed two applications, viz:
“(1) Motion for leave to bring this action in a representative capacity.
(2) Motion for mandatory decree for payment of the compensation money into Court for the purpose of its being preserved pending the final determination of the substantive action.”
The motions came before Ayorinde, J. (as he then was). For reasons which are not quite clear from the Record, the matter was transferred to Adeniji, J. by the Chief Judge of the State. Adeniji, J. heard the application for an injunctive order to pay the compensation money into Court. He did not see his way clear in granting it. He dismissed it. That was on 27th July, 1988. The learned trial Judge did not hear the motion for leave to bring the action in a representative capacity.
Dissatisfied with the ruling of the learned trial Judge, the appellants have come to us. They filed six grounds of appeal. Very long briefs passed through the parties. The appellants filed a brief of 73 pages and a reply brief of 21 pages, while the 7th to 8th respondents filed a brief of 13 pages. And so we have to grapple with arguments running into 137 pages. It is not an easy task but we will try.
The appellants have formulated the following issues for determination.
“(1) Whether or not the learned trial Judge was not wrong when he held that the absence of a representation order in favour of the plaintiffs/applicants/appellants constituted a bar to the injunction order sought by the plaintiffs/applicants/appellants even on the face of “Exhibit GFI annexed to the injunction application and the application for representation order pending before him and both application of which were dated 15th February, 1988.
(2) Whether or not the learned trial Judge was correct in dismissing the plaintiffs’ interlocutory application for injunction order on the ground that the reliefs claimed in the said interlocutory application are the same as the reliefs claimed on the Writ of Summons.
(3) Whether the plaintiffs have locus standi to institute this action.
(4) Whether or not the trial Judge, based on the materials before him, ought to have granted the preservative injunction application dated 15th February, 1988.
(5) Was the ruling dated 27th July, 1988 in a consonance with what a decision of a Court of Law should contain?”
The 1st to 6th respondents have formulated the following issues for determination:
“(1) Whether the trial Court could rightly deem as ordered and granted leave of Court authorising the plaintiffs/appellants to commence their suit in representative capacity when, having been called upon by the Court to move their application for such leave, the plaintiffs/appellants declined and instead insisted on moving their application for interim order of injunction?
(2) If the answer to the question was in the negative, what could be the effect of this refusal on the application they opted for and moved?
(3) What would be the effect of their refusal to move that application upon the application they moved?”
And finally, the 7th and 8th respondents have formulated the following issues for determination: –
“(1) Whether the plaintiffs can sue the Ado Family as represented by 7th and 8th defendants in respect of the land being claimed to belong to Iba Community when the Oba of Iba the Oniba and other principal members of Iba Community are opposed to the plaintiffs arrogating to themselves the role of the defender of the Community.
(2) If the plaintiffs have no competence whether all proceedings based on that incompetence shall not be nothing built on nothing.
(3) Whether the Court can make an Order in vain when the affidavits filed by the 7th and 8th defendants show facts that they have shared the compensation money among the members of their family.
(4) Whether the Court can authorise the plaintiffs to sue for members of Iba Community who do not authorise it.
(5) Whether the granting of the reliefs in interlocutory injunction will not amount to the granting of two reliefs being asked for in the Writ of Summons without the Court hearing evidence on the matter.
(6) Whether the Court can grant interlocutory injunction for an act which has been done as stated in the case of John Holt Nigeria Limited & Anor. V. Holts African Workers Unions of Nigeria and Cameroons (1963) 2 SCNLR 383; (1963) I All NLR 379 when the counter affidavits show all these facts.”
Learned counsel for the appellants, Mr. Taiwo Kupolati, submitted that in a representative action, persons with common interest in a particular subject matter may authorise one or more of their members to pursue their collective claims against certain known defendants. Such representing individuals may obtain leave of Court to pursue such collective claims against such known defendants. He relied on Dilibe v. Nwakazor (1986) 5 NWLR (Pt.41) 315; Bolatito v. Sale Administrator (1986) 5 NWLR (Pt.42) 496; Ayinde v. Akanji (1988) 1 NWLR (Pt.68) 70. Relying on Obiode v. Orewere (1982) 1-2 S.C. 170 at 175; John v. Rees (1969)2 WLR 1294 at 1306 and Bedford v. Ellis (1901) A.C.8, counsel submitted that the rule as to representative capacity b a rule or convenience only and ought not to be treated as rigid but as a flexible tool of convenience in the administration of justice. He further submitted that even if the application for representative order had not been filed, Exhibit GFI annexed to the motion for injunction constituted sufficient material on which the trial Judge could have held that the plaintiffs have been duly authorised to bring the action. Calling the attention of the Court to Otapo v. Sunmonu (1987) 2 NWLR (Pt.58) 587 at 600, learned counsel submitted that the presence or absence of a representation order does not affect the validity of an action.
On the issue of locus standi, learned counsel submitted that the locus standi of a plaintiff can only be put to test via the plaintiff’s statement of claim. It amounts to a clear error in law in finding if a suitor has title to sue, to venture to determine such delicate issue by recourse to material exhibits and affidavit evidence, learned counsel contended. He relied on Thomas v. Olufosaye (1985) 3 NWLR (Pt. 13) 523, at 536 and 537 and Shell BP Petroleum Development Co. v. Onasanya (1976) 1 All NLR (Pt.1) 425 at 429.
Counsel submitted that all that the plaintiffs needed to show in the circumstances of the case that they have locus standi is
(i) that they are members of the Iba Community;
(ii) that they had lands in the area now known and called Ojo Military Cantonment prior to its compulsory acquisition;
(iii) that compensation money was paid in respect of the lands compulsorily acquired;
(iv) that they have been denied their own share of the compensation money by the defendants.
He submitted that once the appellants can establish the above facts, which they have stated in their statement of claim, they can even as individuals sue in respect of the compensation money. He relied on Fawehinmi v. Akilu and Another (1987) 4 NWLR (Pt.67) 797; Egbe v. Adefarasin (1987) 1 NWLR (Pt.47) 1; Thomas v. Olufosaye (1986) NWLR (Pt. 669); and Adesanya v. The President of the Federal Republic of Nigeria (1981) 2 NCLR 358. Counsel urged the Court to hold that the learned trial Judge was wrong in coming to the conclusion that the appellants had no locus standi to institute the action.
Dealing with the dismissal of the appellant’s application for interlocutory injunction, learned counsel took pains to examine the contents of the substantive action as well as those of the application for interlocutory injunction and submitted with great force that the reliefs sought in the two actions are different. Justifying the application for interlocutory injunction, learned counsel submitted that one of the foremost duties of a trial Court is to ensure the preservation of the res of a case before it so that its judgment will not be rendered nugatory. If it be otherwise, then the Court becomes functionless and otiose in regard of its duties since it will merely press the process of trial to high heights and deliver judgment that is incapable of being executed, counsel argued. He relied once again on Bolatito v. Sale Administrator (supra). He also relied on Okafor v. Attorney-General, Anambra State (1988) 2 NWLR (Pt.79) 736 at 754 and dealt in some detail with the case of John Holt Nig. Ltd. and Another v. Holts African Workers Union of Nigeria and Cameroons (1963) 2 SCNLR 383; (1963) 1 All NLR 379, a case the learned trial Judge applied. Counsel submitted that Order 39 Rule 2 of the High Court of Lagos (Civil Procedure) Rules 1972 which the learned Judge applied, is not meant to be invoked to avoid the preservation of the res of a case pending the determination of the substantive suit. To counsel, an order for an early trial, as was ordered by the learned trial Judge in this case, without an order preserving the res of the case is a bare order without an attribute of justice to the parties hereto, particularly the appellants. He urged the Court to hold that the refusal of the application for interlocutory injunction is capable of deluding the substratum of the substantive case since the money will be spent before conclusion of trial and the trial will not only be empty but the judgment painfully barren. He submitted that the appellants were entitled to the reliefs sought in their application for interlocutory injunction. He relied on Obeya Memorial Hospital v. Attorney-General of the Federation (1987) 3 NWLR (Pt.60) 325 at 338; Ladunni v. Kukoyi (1972) 1 All NLR (Pt.1) 133 at 138; American Cyanamid v. Ethicon Ltd. (1975) A.C. 396; Kufeji v. Kogbe (1961) All NLR 113 at 114; Ojukwu v. Governor, Lagos State (1986) 3 NWLR (Pt.26) 39 at 45; Egbe v. Onogun (1972) All NLR (Pt.1) 95 at 98; Nigerian Civil Service Union v. Essien (1985) 3 NWLR (Pt.12) 306 at 308 and 309 and Collinson v. Warren (1909) 1 C.H. 815 at 816.
Learned counsel dealt in some detail with the ruling of the learned trial Judge and submitted that it did not contain the basic requirements of a good judgment. He urged the Court to hold that the ruling is at best not only grotesque but pictures an excellent model of a bad decision which deserves to be set aside for all ends.
Learned counsel for the 1st to 6th respondents Mrs. H.A. Balogun, on the issue of bringing the action in a representative capacity, submitted that Exhibit GFI cannot be a substitute for the necessary leave of Court. She relied on Wiri and Others v. Uche and Others (1980) 1-2S.C. 1 at 18. Leave of Court is a condition precedent in Order 13 Rule 14 and since leave was not sought, the appellant’s application for interlocutory injunction was incompetent. Counsel also relied on Bolatito v. Sale Administrator (1986) 5 NWLR (Pt.42) 496 at 507.
Learned counsel argued that in the face of glaring incontrovertible evidence that the majority of the people the appellants seek to represent are against the action they took, it was not open to the appellants to arrogate to themselves representative capacity to sue. Counsel said that the two fundamental principles governing suits brought in a representative capacity are (a) that those represented must have a common interest and a common grievance, and (b) that the relief sought must in its nature be beneficial to all those whom the plaintiff is representing. She called in aid Ayinde v. Akanji (1988) I NWLR (Pt.68) at 70.
On the issue of locus standi, learned counsel submitted that the definition of the expression of Obaseki, J.S.C. in Thomas v. Olufosoye (supra) imposes a burden upon the appellants to establish their locus standi in the statement of claim. She relied on Mano v. Olotu (1970) 1 All NLR 117. It was the contention of learned counsel that the mere fact that the appellants are members of Iba Community was not disclosure of interest sufficient to give them locus to prosecute the action; they are expected to go further and establish the identity of their interest in the chieftaincy family land, and furthermore aver in the statement of claim how their interest in the chieftaincy family land arose. This, to learned counsel, is particularly necessary when the 1st defendant/respondent at pages 67 to 68, paragraph 10 of the counter affidavit deposed to the fact to represent have no interest in the community land over which compensation was paid.
On the issue whether reliefs sought in the substantive action are the same or substantially the same with those in the application for interlocutory injunction, learned counsel submitted that the learned trial Judge was right in relying on the case of John Holt Nigeria Limited and Another v. Holts African Workers Union of Nigeria and Cameroons (supra). Counsel said that as a Supreme Court decision, it is binding on all Courts of the land. Examining the principles governing the grant of interlocutory injunction in some admirable detail, learned counsel submitted that the learned trial Judge was right in refusing the application. She relied on Airport v. Securities Corporation (1895) 64 L.J. C.H. 491; American Cyanamid Co. v. Ethicon (1975) 1 All ER 504 and Obeya Memorial Hospital v. Attorney General of the Federation (supra).
On what the learned counsel called strictures against the ruling of the trial Judge, she submitted that there can be as many variations of a judgment as there are Judges. She submitted that the strictures, like the language used, generally in the brief, are in hard taste.
Learned counsel also submitted that the 1st defendant/respondent as Oniba of Iba has power and prerogative to receive on behalf of the community compensation payment on the acquisition, and distribute and utilize same for the benefit of the community at large and members of the community. She relied on Amodu Tijani v. Secretary Southern Nigeria (1921) 2 A.C. 399 and the Public Lands Acquisition (Miscellaneous Provisions) Act. 1976. Therefore counsel submitted that the learned trial Judge was right in refusing to interfere with the exercise by the 1st defendant/respondent of his prerogative rights over the disbursement of the compensation money by not acceding to the appellant’s application for an order of interlocutory injunction. He urged the Court to dismiss the appeal.
Learned counsel for the 7th and 8th respondents Mr. A. Bashua said that the application to sue in a representative capacity is asking that the appellants be permitted to represent the two families and not the entire Iba Community. Therefore even if the application was granted the appellants still had no locus standi to sue for and on behalf of the entire members of the Iba Community. Relying on Balogun v. Balogun (1935) 2 WACA 290 at 299, learned counsel submitted that the 1st defendant/respondent, the Oniba of Iba is vested with the management and control of the Iba Community.
Relying on the counter affidavit of the 1st to 6th defendants/respondents and the case of Green v. Green (1987) 3 NWLR (Pt.61) 491, learned counsel submitted that the appellants cannot maintain an action that can bind those who have not authorised them. To learned counsel, the trial Judge rightly came to the conclusion that the appellants had no locus standi in the matter.
Counsel submitted that the 4th and 5th reliefs claimed in the writ of summons are the same reliefs claimed in (1) and (2) of the motion for interlocutory injunction. Therefore the learned trial Judge was bound to follow the principle of law enunciated in NNSC v. Sabana (1988) 2 NWLR (Pt.74) 23.
Contending that a Court of law does not act in vain, counsel submitted that at the time of the application for interlocutory injunction, there was nothing to preserve and the appellants themselves have not denied this. He relied on John Holt (Nig) and another v. Holts African Workers Union of Nigeria and Cameroons (supra). Learned counsel further submitted that it will cause injustice to 150 families by granting the application for interlocutory injunction; families which have been paid with various sums of the compensation money. The only way open was to accelerate the hearing in the way the learned trial Judge has ordered, counsel contended.
On the Ruling of the learned trial Judge, learned counsel submitted that there was nothing wrong with the way the ruling was written, contending that Judges have different ways of writing judgments.
In his reply brief, and referring to the disbursement of the compensation money, Mr. Taiwo Kupolati submitted that a party to a pending lis cannot validly, legitimately and legally part with or transfer the subject matter of such pending lis and foist upon the Court a situation of absolute helplessness. He further submitted that no rights or benefits in the subject matter of pending action can validly be transferred or taken by litigant parties to the prejudice of the other. He cited the unreported decision of Abdullah v. Military Governor, Lagos State, CA/L/197/86 of 20/4/88. The Courts frown at disposition pendente lite because judicial allowance of it will defeat the purposes for which they are existing. He also submitted that in the absence of particulars of how the compensation money was disbursed, a Court is entitled to make a preservation order. He relied on Wallingford v. Mutual Society (1879-80) 5 A.C. 685 at 704.
Recounting in some detail the different counter-affidavits, learned counsel claimed that the “ten named persons” who swore the counter affidavit of 28th June, 1988, being strangers to the action, cannot in law swear the counter affidavit without being joined as parties in the action.
Learned counsel pointed out to the Court that counsel for the respondents freely introduced facts in their briefs which were not contained in the different affidavits. He mentioned specific instances at pages 18 to 20 of the reply brief and urged the Court to expunge them from the briefs. He relied on Kuye v. Olubode (1974) 10 S.C. 209 at 215.
Learned counsel also replied to the issue of suing in a representative capacity. He also condemned the way counsel for the 7th and 8th respondents argued the appellants grounds of appeal instead of the six issues he formulated in the brief of the respondents. He finally urged the Court to allow the appeal.
Let me quickly dispose of the issue relating to brief writing. Learned counsel for the 7th and 8th respondents and that for the appellants are at each other’s throats on the way the briefs were written and argued. Counsel for the 7th and 8th respondents threw the first blow. Reacting to the way the issues were formulated vis-a-vis the grounds of appeal, learned counsel said inter alia:
“The Supreme Court has emphasised that issues for determination should be treated under the Grounds of Appeal. This has not been done in Appellants Brief and we cannot reply in the order the appellants Brief has been written … We have therefore replied on the Grounds of Appeal of the appellants and issues for determination formulated by us.”
Learned counsel for the appellants in his reply brief raised similar attack on the brief on the 7th and 8th respondents. This is part of what he said at page 27 of the reply brief:
“They then took the Appellants grounds of appeal one after the other and argued their case thereupon: thus intrinsically turning each ground of appeal to an issue for determination. As it appears the 7th and 8th respondents put forward six issues for determination; but, they never really specifically dealt with any of the said issues.”
The law governing brief writing is by now reasonably settled that a brief must be based on the grounds of appeal filed by the parties. If the issues are not related to any ground of appeal, then they become irrelevant and go to no issue. See Onifade v. Olayiwola (1990) 7 NWLR (Pt.161) 130; Osinupebi v. Saibu (1982)7 S.C. 104; Ugo v. Obiekwe (1989) 1 NWLR (Pt.99) 566; Okpala v. Ibeme (1989) 2 NWLR (Pt.102) 208.
In Alhaji Momodu and Others v. His Highness Alhaji Momoh and Another (1991) 1 NWLR (Pt.169) 608, Uwais, J.S.C. aptly put the legal position at page 621 thus:
“…the issues formulated for determination take the place of grounds of appeal and when the issues have been considered by the appellate Court that is equivalent to considering the grounds of appeal. That is the essence of the practice of brief writing … Consequently, the Courts resolve the controversy in appeals by reference to the issues for determination and not the grounds of appeal.”
In the practice of brief writing, an issue may cover a ground or a number of grounds. An issue expatiates, expands or edifies a ground or grounds of appeal. Issues for determination in a brief act as a mirror reflecting the grounds of appeal. A brief argues issues; not grounds of appeal. Grounds of Appeal are set out in the Notice of Appeal and they stop there. In the brief, the issues are formulated from the grounds of appeal filed in the Notice of Appeal.
Learned counsel for the 7th and 8th respondents submitted that “issues for determination should be treated under the Grounds of Appeal.” And he credited the statement to the Supreme Court. If the word “under” in his context carries the ordinary meaning of “beneath, below, in or to a position lower than that of or especially vertically lower, “then I have my doubts that the Supreme Court intended that meaning. And when I say this, I do not want to hide my ignorance that I am yet to come across a decision of the Supreme Court on the use of the word “under” which conveys the ordinary meaning I have mentioned above. In Onifade V. Alhaji Olayiwola and Others (1990) 7 NWLR (Pt.161) 130, Nnaemeka-Agu, J.S.C. after examining the case law in some detail, concluded at page 157:
“From the numerous decisions of this Court, such issues are formulated from the grounds of appeal filed.”
I feel more comfortable with the word from as used by Nnaemeka-Agu, J.S.C. rather than the word under. I do not see the need for such a symmetrical arrangement like a pupil’s composition in a typical kindergarten or classroom setting. The rules of brief writing have not moved to that level of regimentation. It is my hope that that day never comes into our adjectival law of brief writing as it will give rise to a number of technical problems which bear no relationship to the practical aspects of brief writing. Both counsel and the Courts will be in some problem. Let us not foment problem for ourselves where there is none.
What was the method learned counsel for the 7th and 8th respondents adopted? It does not appear that he even adopted the method of treating the issues for determination under the grounds of appeal. He departed from it. I expected him to do just that, since he thinks that is the correct method. All he did was to go straight to the grounds of appeal under the generic heading of Argument at page 6 of the brief. At pages 6 to 9, he argued Grounds 1 and 4 together. At pages 10, 10A and 11, he argued grounds 2 and 5 together. At pages 11 and 12, he argued Ground 3. And finally at pages 12 and 13, he argued Ground 6.
There is nowhere in the brief where he specifically took the grounds in the context of the issues formulated by him? As I indicated earlier, he formulated six issues. Since he did not adopt the issues formulated by the appellants, he ought to have used the six issues he formulated as basis of his argument in the brief. But he did not. He did not even relate the grounds of appeal to the issues formulated by the appellants, assuming that he could have legally done so, in the face of his own formulated issues.
In my view, there are many aberrations and discrepancies in the brief of the 7th and 8th respondents to the extent that they substantially affect the merits of the brief. Now to the appellants brief. Perhaps apart from a few volatile attacks on the way the learned trial Judge arrived at his decision, and particularly the way he wrote the ruling, the brief of the appellants, in my humble view, is well written, well articulated and well argued. It contains very useful law and it is prolific both in character and in content. As a matter of fact, it is one sound brief I have read in recent times.
Learned counsel for the appellants raised the issue of non-parties swearing affidavits in the matter. Affidavits get to the Court by two main ways. They get to the registry of the Court in a matter which is not a subject of litigation. An example of such a matter is declaration of age. The other way they get to the Court is in respect of a pending litigation or a litigation physically going on in Court. In either case, affidavit qualifies as documentary evidence. Where it is not challenged, it is admissible and generally admitted, unless the fact deposed to is so notoriously wrong as a matter of common public knowledge and experience.
Depositions or averments in an affidavit, being admissible evidence, cannot normally be restricted to only the parties to the litigation. This however does not mean that every person under the rays of the sun can swear an affidavit in a matter before a Court of law. Since oral evidence in Court can only be given by a witness, it stands to reason that an affidavit evidence can also only be given by a witness. I think Section 85 of the Evidence Act will be useful here. The section provides:
“Every affidavit used in the Court shall contain only a statement of fact and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.”
The word witness in the section contextually carries its ordinary meaning of a person who gives evidence in a Court of law. Although in my hasty and hurried research I could not place my hands on any authority, I will hate to think that it is the province of the law to allow any person whosoever to swear an affidavit in a matter before a Court of law. If nothing else that will be against public policy as the Courts will be flooded with all sorts and all kinds of affidavit evidence, come rain, come sunshine. The resultant effect is that there will be no end to litigation and that will be bad for the judicial process, the parties and the Courts.
One very serious point of contest is in respect of commencing the action in a representative capacity without obtaining the leave of Court. The fundamental principles governing suits or actions brought in a representative capacity are:
(i) those represented have a common interest and a common grievance and
(ii) that the relief sought must in its nature be beneficial to all those whom the plaintiff is representing.
See Chief Atanda and Another v. Olanrewaju and Others (1988) 4 NWLR (Pt.89) 394; Akporue v. Okei (1973) 12 S.C. 137; Olatunji v. The Registrar. Co-operative Societies, Ibadan (1968) NMLR 393; Atane v. Amu (1974) 10 S.C. 237.
Representative action is not a matter of strict law which requires strict adherence and compliance. It is a rule of convenience. It was a rule that was originated for convenience and for the sake of convenience, its application in cases has been relaxed. It is therefore not to be treated as a rigid rule but as a flexible tool in the administration of justice. See Anatogu v. Attorney-General. East Central State and Others (1976) 11 S.C. 109; Obiode v. Orewere (1982) 1-2 S.C. 170; John v. Rees (1969) 2 WLR 1294.
The authority of a person to bring a representative action can be challenged by way of preliminary objection on motion and not by way of defence. See Russian Commercial and Industrial Bank v. Comptoir D’ Escompte de Mulhouse (1925) A.C. 112 at 162; Ifonwu v. Egbuji (1982) 9 S.C. 145.
The only reason the learned trial Judge gave for refusing the application for commencing the action on a representative capacity was the fact that leave of the Court was not sought. The learned trial Judge said at page 165 of the Record:
“I hold that the plaintiffs here cannot sue in a representative capacity without obtaining an order of Court so to do, and the action is therefore incompetent.”
Order 13 Rule 14 of the High Court (Civil Procedure) Rules of Lagos, 1972 is the enabling rule. It reads:
“Where there are numerous persons having the same interest in one cause or matter, one or more of such persons may with the leave of the Court or a Judge sue or be sued, or may be authorised by the Court or a Judge in chambers to defend any cause or matter, on behalf or for the benefit of all persons so interested.”
It is clear that the rule uses the word may twice. It is an established canon of statutory interpretation that the word “may” is generally permissive and not mandatory. It does not foist on a party a legal duty which must be performed or which is not performed at the pain of punishment. Let me sound more relevant. It is not my understanding of rule 14 that failure on the part of the appellant to seek leave of the Court must, as a matter of law, oust the jurisdiction of the Court. I do not see such a sanction or penalty in rule 14, but that is the whole essence of the ruling that “the action is incompetent.”
By Order 3 Rule 2(1), if the plaintiff sues, or the defendant or any of the defendants is sued, in a representative capacity, the endorsement shall show in what capacity the plaintiff sues or issued. I must say that the above rule was complied with. The appellants on the record sued “for themselves and on behalf of Idowu Balogun Family of Idomila Ruling House of Iba Community.”
Was the learned trial Judge right in the circumstances for not granting leave to the appellants to sue in a representative capacity? There is evidence that he ought to have granted the leave in the circumstances of the case. Firstly, the appellants complied with the requirements of Order 3, Rule 2(1). Secondly, Exhibit GFI was the Resolution made by 23 persons; some of them signed, while others impressed their thumb prints. There is the illiterates jurat at the end of the resolution duly signed by the Secretary of Iba Town.
Exhibit GFI contains four resolutions. The most relevant one is the last resolution, that is resolution (iv). It reads:
“That Mr. Lamidi Fabiyi, Alhaji Liadi Busari, Lamidi Yusuf Daramola and Isaiah Arowolo be authorised and mandated to represent the interests of the Idowu Balogun Family as well as the Ikogbe king-makers family in the proposed Court suit.”
Thirdly, the record shows at pages 17 and 18 a Motion on Notice dated 15th February, 1988 and which would appear to have been fixed for hearing on 29th by the Court to bring the action in a representative capacity. In paragraph 6 of the affidavit in support, the deponent, the 1st appellant, deposed as follows:-
“That the plaintiffs have been authorised by the principal members of the Idomila Ruling House and the Ikogbe King-makers Family as aforesaid to bring this action against the defendants jointly and severally and to act as their representatives in the same behalf in this action and of protecting their rights. The Instrument of Authority is attached and marked Exhibit GFI.”
The learned trial Judge recognised the existence of the motion to sue in a representative capacity in his ruling of 27th July, 1988, which is the subject of this appeal. He said at page 164 of the Record:-
“There is an application by the plaintiffs for leave to institute the action in a representative capacity in the Court’s file. When this motion directing the sum of N9, 064,986.00 to be paid to Court was to be heard, I asked leading learned counsel for the plaintiffs – Mr. Kupolati about the said application, and his reply was that he preferred to deal with the present application first, and he argued his case. The defendants’ case was thus fought on the basis that the plaintiffs failed to disclose the capacity they were suing and therefore had no locus standi.”
I see here a situation where counsel for the plaintiffs was in error in not moving the motion for an order to sue in a representative capacity first. But is it proper in law to punish the appellants for the error or mistake of their counsel. The law is trite that it is not in the interest of justice and fairplay to punish parties for mistakes of their counsel. See Doherty v. Doherty (1964) 2 SCNLR 96; (1964) 1 All NLR 299; Anisiuba v. Emodi (1975) 2 S.C.9; National Electoral Commission and Others v. Wadi (1989) 2 NWLR (Pt.104) 444.
In my opinion, the learned trial Judge had all the evidence before him that the action was brought in a representative capacity and he had all the opportunity to grant leave to the appellants in the peculiar circumstances of the case. That he failed to make use of the opportunity because of the reasons he advanced, is to say the least, sad.
By his approach, he relied on arid legalism or abstract technicality which our contemporary steam, propelling justice in the legal system, not only frowns upon but regards as aberrant. It is now a notorious principle of law that, as Courts of equity that we are, we should not pursue technical and abstract justice at the expense of dealing with the merits of the matter, but rather ensure that substantial justice is done to the parties.
The primary function of any Court of law is to do justice to the parties and where any procedural rule is antithesis to justice and fairplay, manoeuvre that harsh rule of law in pursuit of justice. If in the course of pursing justice, the Court ‘errs’ it has ‘erred’ in the right direction.
Under normal course of events, a person who thinks he should be a party to an action and who is not made a party, will certainly make his position known to the Court early in the litigation process so that he does not become a victim of a possible Court order. The reverse position is also true, as it relates to a person who is made a party in an action in a representative capacity. The moment he has knowledge of the pending action, he has a legal duty to disassociate, disentangle or untie himself from the action before he is knee-deep or complexly involved, to the extent that a return becomes impossible.
In either case, the party can make his position known to the Court by way of motion on notice. If however no steps are taken and the litigation is prosecuted to judgment, the Court will assume and rightly so for that matter, that the representative action is properly before the Court.
It is clear from the wordings of Order 13 Rule 14 that the provisions are permissive and made for the convenience of the parties. It is not a do or die affair that failure to comply with the permissive rules must result in the type of ‘punishment’ the learned trial Judge pronounced by way of declaring the action incompetent.
Before a Court can, or better still, should pronounce an action incompetent, it should be clear on the record that it has no jurisdiction whatsoever to entertain it. And this the Court can do only when the action is illegal, illegitimate, unfit, lacking capacity or legal power. An action could be said to be incompetent, if the non-compliance with the rules of Court, affect the props, the foundations and the fundamentals of the case. But where non-compliance, as in the instant case is of a peripheral nature which is not substantial but intangible and frivolous, should not give rise to a pronouncement that the action is incompetent. Since the consequences of an incompetent action are grave and telling on the plaintiff. Courts of law should not be too quick and ready in branding an action incompetent.
In Otapo v. Sunmonu (1987) 2 NWLR (Pt.58) 587, Obaseki, J.S.C. said at page 600:
“It is settled law that the failure to obtain leave to sue in a representative capacity does not vitiate the validity of the action.”
By declaring the action incompetent, the learned trial Judge towed the opposite line of the Supreme Court’s decision in Ofapo v. Sunmonu (supra).
Learned counsel for the 1st to 6th respondents cited the case of Wiri and Others v. Uche and Others (1980) 1-2 S.C. 1. She specifically cited the following dictum of Idigbe, J.S.C. at page 18:
“That the authority for plaintiff to sue on behalf of a community must come from that community and that the order of leave to prosecute on behalf of the community under the rules of Court must come from the Court, otherwise the plaintiffs must be regarded as prosecuting such proceedings in their personal capacity.”
Learned counsel relied heavily on the above. I would like to point out that in the case, the learned Justice of the Supreme Court did not say that failure to comply with the rules of Court by way of seeking leave, will make the action incompetent.
All he said is that the action will be deemed to be a personal action of the plaintiff and not in a representative capacity. Where then lies the authority of the learned trial Judge declaring the action incompetent?
And this takes me sequentially to the issue of locus standi. The concept of locus standi which in recent times has gained so much prominence in our legal system and has been so frequently applied has been a common law concept, which has been in vogue for centuries. See generally The Sidebotham case (1880) 12 Ch.D. 458 at 465; Dyson v. Attorney-General (1912) 1 Ch.158; Massachusetts v. Mellon (1923) 262 U.S. 447 and Attorney-General and Others v. Commonwealth (1946) 71 C.L.R. 237 at 238.
Although the concept received some judicial attention, so to say, immediately after independence in the cases of Olawoyin v. Attorney-General, Northern Nigeria (1961) 2 SCNLR 5; (1961) 1 All NLR 269 and Gamioba and Others v. Ezezi II and Others (1961) 2 SCNLR 237; (1961) 1 All NLR 584, it was more extensively considered by the Supreme Court in the often cited case of Senator Adesanya v. President of the Federal Republic of Nigeria and Another (1981) 2 N.C.L.R. 358, a case which has been a victim of both scholarly and judicial comments.
In that case, Fatayi-Williams, C.J.N. defined the term as follows:-
“The term locus standi denotes legal capacity to institute proceedings in a Court of law. It is used interchangeably with the terms like ‘standing’ or title to sue.”
Bello, J.S.C. (as he then was) also gave a helping hand at page 380, where he defined the expression “as the right of a party to appear and be heard on the question before any Court or tribunal.”
In Chief Dr. Thomas and Others v. Rev. Olufosoye (1986) 1 NWLR (Pt.18) 669, the Supreme Court adopted the definition of Fatayi-Williams, C.J.N. in Adesanya. And in the Hon. Justice Ovie-Whisky and Others v. Chief Olawoyin and Others (1985) 6 N.C.L.R. 156 at 711, Wali, J.C.A. (as he then was) adopted the definition of Bello, J.S.C. (as he then was) in Adesanya. And in Chief Anago-Amanze and Another V. Dr. Onwudiwe and another (1985) 6 N.C.L.R. 620 at 628. Araka, C.J. described the concept thus:-
“By locus standi is meant a sort of self-imposed limitation by the Court over the exercise of its judicial powers.”
With respect, it may not be invariably correct to say that the concept means a self-imposed limitation on the part of the Court in the exercise of its judicial power. There should be a qualification and the qualification is this: where a statute clearly provides for the locus standi or standing of a party to sue, a Court of law, has not option than to succumb to the provisions of such a statute. In such a situation, there is no self-imposition but is a matter of law which the Court must enforce in the invocation of its interpretative jurisdiction. The definition in Anago Amanze will apply only in the absence of a statutory limitation and the Court is faced with a factual situation vis a vis the cause of action before it.
In 1987, the Supreme Court made further progress by way of expanding the frontiers of the concept. That was in the celebrated case of Chief Fawehinmi v. Col. Akilu and Another. In Re Oduneye (1987) 4 NWLR (Pt. 67). In that case the Supreme Court gave a more liberal interpretation to the concept. Since Fawehinmi was decided the impression is created that the decision has moved beyond Adesanya and should be regarded as the current position of the law. I do not agree. While Adesanya dealt with a civil matter, Fawehinmi dealt with a criminal matter. It is my understanding of the law that different considerations apply in the determination of locus standi in civil and criminal matters. Therefore it is not correct to say that Fawehinmi is an improvement or an extension of Adesanya. It cannot be so. And it ought not to be so. I have added this bit of the development of the law as a basis for a further comment in this judgment. One other way of defining locus standi or standing is the legal right of a party to an action to be heard in litigation before a Court of law or tribunal. The term entails the legal capacity of instituting: initiating or commencing an action in a competent Court of law or tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever. There is locus standi only when the action is justiciable. There is no locus standi where the action is not justiciable because the Courts will not be in a position to enforce the judicial powers vested in them under section 6(6) (a) and (b) of the Constitution.
In Chief Thomas and Others v. Rev. Olufosoye (supra), the Supreme Court held that as the law stands there is no room for the adoption of the modern views on locus standi in England and Australia. The most pragmatic of all in English law on the concept is Lord Denning. Apart from his very extensive and expansive development of the concept in his judicial capacity, he had this to say in his Discipline of Law (1979) at page 113:-
“During the 19th Century the Courts were reluctant to let anyone come unless he had a particular grievance of his own. He had usually to show that he had some legal right of his own that had been infringed or some property of his own that had been injuriously affected. It was not enough that he was one of the public who was complaining in company with hundreds or thousands of others. But during the 20th century the position has been much altered. In most cases now the ordinary individual can come to the Courts. He will be heard if he has sufficient interest in the matter in hand. But the test of a ‘sufficient interest’ is very elusive. It has to be worked out by the Courts.”
I entirely agree with him and I adopt the statement as mine.
In Hon. Justice Ovie-Whisky and Others v. Chief Olawoyin and Others (1985) 6 N.C.L.R 156, the Court of Appeal held that section 6(6)(b) of the Constitution permits of a wider and more liberal view of locus standi than the English Law permits. This is a very interesting development worth exploring.
By the present state of the law in Nigeria and in most other jurisdictions, the determination of locus standi zeros on two major and telling words. One is ‘sufficient’. The other is ‘interest’. They both make up the ‘sufficient interest’ concept. The term sufficient interest is broad and generic. It is also vague and nebulous. It lacks a precise and apt legal meaning. It could only be determined in the light of the facts and circumstances of the particular case. The question of what constitutes sufficient interest is one of mixed law and fact; that is to say, it is not a question of law only or a question of fact only but both.
In arriving at a decision one way or the other, the Court will be guided by the overall interest of the parties in the litigation process in the absence of a specific enabling statute. This involves two apparently conflicting duties of the Court to vindicate the rights of the plaintiff to set the litigation process in motion and the concomitant rights of the defendant not to be dragged into unnecessary litigation by a person who has no standing in the matter or a mere busybody parading the corridors of the Court. By and large, the trial Judge, in determining locus standi, will be involved in the delicate balancing of divergent interests which are diametrically opposed in the enforcement of the judicial process. It is a very complex exercise based on the pleadings of the plaintiff. I shall return to this aspect on the plaintiff’s pleadings.
In Olawoyin v. Attorney-General Northern Nigeria (supra) the Federal Supreme Court held that a declaration can only be made in favour of an interested party and a person asking for a declaration must therefore first show that he has an interest in the subject matter. In Senator Adesanya v. President of the Federal Republic of Nigeria (supra), Bello, J.S.C. (as he then was) held that in order to bring an action to determine the constitutionality of an act, the plaintiff must “show that either his personal interest will immediately be or has been adversely affected by the action or that he has sustained or is in immediate danger of sustaining an injury himself.”
In Chief Ojukwu v. Governor of Lagos State and Others (1985) 2 NWLR (Pt.10) 806, it was held that the text of interest to determine a party interested in a matter is whether the person could have been joined as a party to the suit. The Court also held that a person interested includes a person affected or likely to be affected or aggrieved or likely to be aggrieved by the proceedings.
In Maradesa v. Military Governor of Oyo State and Another (1986) 3 NWLR (Pt.27) 125, the Court of Appeal held that the term ‘interest’ should not be given a narrow construction, but should be regarded as including any connection, association or interrelation between the applicant and the matter to which the application relates.
One other test of sufficient interest is whether the party seeking for the redress or remedy will suffer some injury or hardship arising from the litigation. If the Court is satisfied that he will so suffer, then he must be heard as he is entitled to be heard. See Chief Ikokwu v. Tobin and Another (1985) H.C.N.L.R. 1326. See also Nwonu v. Administrator-General, Bendel State and Others (1991) 2 NWLR (Pt.173) 343.
So far so good on the law, I now come to the factual position. I had earlier mentioned that the appellants brought the action in a representative capacity. The statement of claim avers to the representative nature of the action in paragraphs 1 to 3. So also is paragraph 9 thereof.
Dealing with the issue of locus standi of the appellants, the learned trial Judge said in his ruling:
“In this case, there is a serious challenge to the locus standi’ of the plaintiffs in the counter affidavits…
In the case under consideration, statement of claim has been filed: there is a serious challenge in the counter affidavit as to the ‘locus standi’ of the plaintiffs. Further if 4th plaintiff was suing for himself; the subject matter of the suit is community money, and as an individual, he cannot prosecute the matter in his individual capacity. See Bamgbose v. Oshoko (1988) 2 NWLR (Pt.78) 509.”
It is trite law that in determining whether a plaintiff has locus standi to sue, the Court can look at only the statement of claim. See His Pre-Eminence Bolaji v. Rev. Bamgbose (1986) 4 NWLR (Pt.37) 632.
Was the learned Judge correct when he moved away from the statement of claim to the counter affidavit to come to the conclusion that the appellants had no locus standi to sue? I think not. In Chief Thomas v. Rev. Olufosoye (supra) Ademola, J.C.A. correctly opined:-
“It is thus clear that the learned Judge has used materials and affidavit evidence which were exhibited during the course of the argument to arrive at some conclusions in the extracts quoted above. But Mr. Ajayi, both in his brief and in the argument before the Court rightly conceded this point of complaint by Mr. Lardner. He however pointed out from the Record that he did not urge that material other than the statement of claim being filed should be looked into while dealing with the issue of locus standi. I think there is agreement on both sides following the case of Shell B.P. Petroleum Development v. Onasanya (1976) 1 All NLR (Pt.1) 425 that in using material exhibits and affidavit evidence to determine the issue of locus standi the learned Judge was in error.”
And I so hold in the instant case. By resorting to the counter affidavits of the respondents instead of confining himself to the 42 – paragraphs statement of claim, the learned trial Judge was in serious error. One essential reason for confining a Judge to the statement of claims is that the plaintiff, who has the burden of proof, is expected to make out a case of standing to sue in his statement of claim. Therefore, where he fails to do so on his own pleadings then there is no need for the Court to call upon the defendant to defend the action. In the instant case the moment the learned trial Judge examined the counter affidavit in relation to the vital issue of locus standi, he made the parties to join issues without at the same time giving the appellants an opportunity to state their own side of the case before concluding that they lacked locus standi to sue. He ought not to have taken that line of action. And what is more, the learned trial Judge ought not to have accepted affidavit evidence which is a subject of controversy, in the circumstances, without oral evidence. The case law is in great proliferation. See Faluyi v. Oderinde (1987) 4 NWLR (Pt.64) 155: Atanda v. Olanrewaju (1988) 4 NWLR (Pt.89) 394; Garba v. University of Maiduguri (1986) 1 NWLR (Pt.18) 550.
In my view, the frontiers of the concept of locus standi should not be static and conservatively so at all times and for all times. The frontiers should expand to accommodate the dynamics and sophistication of the legal system and the litigation process respectively. In other words, the concept must move with the times to take care of unique and challenging circumstances in the litigation process. If the concept of locus standi is static and conservative while the litigating society and the character and contents of litigation are moving in the spirit of a dynamic changing society, the concept will suffer untold hardship and reverses. That will be bad both for the litigating public and the concept itself.
In the instant case, after a very careful and sober examination of the very large pleadings of the appellants, I come to the conclusion that the appellants prima facie have locus standi to institute the action, and a’ fortiori to bring the motion for interlocutory injunction. They may succeed. They may fail. The trial Court is not there yet. We in this Court are very much distant from that. All we are concerned with at this moment is whether the appellants have locus standi in this matter. My answer is in the affirmative. And when I say so I confine myself to the statement of claim and not the counter affidavit.
Having dealt with the issue of locus standi, I now go to the issue whether the learned trial Judge was right in refusing the application for interlocutory injunction. The principles governing the granting or refusal of application for interlocutory injunction are commonplace. I do not think it necessary in the circumstances of this appeal to restate them. See generally Amachree v. I.C.C. Ltd. (1989) 4 NWLR (Pt.118) 686; Ilechukwu v. Iwugo (1989) 2 NWLR (Pt.101) 99; Abdullah v. Government of Lagos State (1989) 1 NWLR (Pt.97) 356; Kanno v. Kanno (1986) 5 NWLR (Pt.40) 138; Obeya Memorial Hospital v. Attorney-General of the Federation (1987) 3 NWLR (Pt.60) 325.
One of the reasons the learned trial Judge gave for not granting the application for interlocutory injunction was that the reliefs claimed in the application “are substantially the same as in the writ…” The general state of the law is that a Court should try as much as it is possible to avoid giving an order in an interlocutory matter which in effect may dispose of the main action before it, without hearing evidence on the merits. The rationale behind this principle of law is that a Court should try to avoid trying the same issue twice. See John Holt (Nig) Ltd. and Others v. Holts African Workers Union of Nigeria and Cameroons (1963) 2 SCNLR 383; (1963) 1 All NLR 379; Falobi v. Falobi (1976) 1 NMLR 169; Egbe v. Onogun (1972) 1 All NLR 95.
Are the reliefs the same or in the words of the learned trial Judge “substantially the same.” I have taken some good time to examine the reliefs in both the substantive action and the application for interlocutory injunction and I do not agree that they are the same or substantially the same. Let me go into some specific details. The reliefs in the substantive action are six. The reliefs in the application are four. The first three declaratory reliefs in the substantive action are not contained in the application. This is quite understandable; and it cannot be basis for holding that the learned trial Judge was wrong in his conclusion. What this Court should consider are the injunctive reliefs common to both the substantive action and the application. Let me take them in numbered paragraphs for ease of reference.
(1) While relief No.3 in the substantive action seeks for a declaration that the sum of N4, 532,493.00, being half of the compensation money, belong to the entire members of Iba Community, relief NO.1 in the application prays the Court to order the payment of the said amount into Court within seven days from date of the order of the Court.
(2) In relief No.4 in the substantive action, the appellants seek for an order “directing the 7th and 8th defendants to pay into Court the said sum of N4,532,493.00 for the benefit and enjoyment of the entire members of the Iba Community of Lagos State.” In relief No.2 in the application, the appellants ask for substantially the same reliefs, if that relief is read alone or disjunctively.
But it cannot and should not be so read.It is tied up with relief No.3 in the application, and the relief is in the following terms:-
“Directing the Chief Registrar of this Court to pay the aforesaid monies paid into the Court into a nominated Bank Account to yield interest.”
Now,we see the difference. While in relief No.4 in the substantive action the Court is urged to pay the said amount to the Court “for the benefit and enjoyment of the entire members of the Iba Community of Lagos State,” no such relief is sought in the application.
(3) The same situation arises in respect of relief No.5 in the substantive action vis a vis the joint interpretation of reliefs Nos. (2) and (3) in the application. While in both reliefs Nos. (4) and (5) the appellants are seeking for a permanent order that the said compensation money be paid for the benefit and enjoyment of all the members of the Iba Community, the reliefs sought by the applicants have some element of transience or temporary arrangement. I say so because the amount is to be paid into an interest yielding bank account pending the determination of the substantive matter.
(4) While relief No.3 in the application is not specific on the last bit, relief No.4 thereof is so clear on it. It is in the following terms:
“That the aforesaid monies paid into Court shall abide the final judgment of this Court in this case.”
And so, while the reliefs in the substantive action understandably call for the Court’s final order in perpetuity, the reliefs sought in the application also understandably call for some interlocutory order pending the determination of the substantive action. In my humble understanding where the substantive action fails, any positive orders made by the trial Court will automatically abate, giving way to the decision of the Court. In other words, the interlocutory orders cannot be enforced on the face of the decision against the appellants in the substantive action. For the avoidance of doubt, I am not in anyway saying or alluding that the appellants will fail. Far from it, all I am saying is that assuming that they fail, then the interlocutory application, if granted, will become moribund. Of course, the trial Judge will take the surer step of formally vacating his earlier order. From the foregoing analysis, the learned trial Judge ought to have granted the application for interlocutory injunction. Since his only reason for not granting the application was that the reliefs sought therein were substantially the same as those in the substantive action, I have no alternative than to grant the application. And here I will not go into the issue whether there was enough affidavit evidence on whether the compensation amount was distributed or disbursed. Counsel raised the issue here but the learned trial Judge did not go into it. I should not therefore go into it.
Now I should deal with the complaint of learned counsel for the appellant the way the ruling was written.
As a matter of general principle, a ruling should contain the following:-
(1) The relief or reliefs sought,
(2) The affidavit evidence if any,
(3) The arguments of counsel,
(4) The analysis of the law in relation to the arguments of counsel and the affidavit evidence, and
(5) The decision of the Court by way of either granting the relief or refusing it.
In my view, once a ruling covers the above main aspects, a trial Judge cannot be faulted.
Learned counsel for the appellants raised a number of issues, including the failure of the learned trial Judge to have an introductory statement before setting out the reliefs, the citation of what was referred to as “hordes of references from decided cases whose relevance were never explained by the trial Judge,” failure to give facts of a case and enormous quoted references from previous decisions.
Writing of a ruling or judgment is basically the personal style of the Judge. In so far as he is able to consider the matters I have indicated above, I think he can hardly be faulted. He need not follow the sequence in which I have indicated. He has every right to change the sequence. He also need not invariably touch on all the matters I have indicated above. It depends on the matter he has on his hands.
Judges adopt different ways of citing cases or other references in their judgments or rulings. Learned counsel complained that the trial Judge cited a number of cases without explaining their relevance. He also attacked the learned trial Judge for failure to give facts of a particular case. It is not in every situation that a trial Judge should narrate the facts of a case. As a matter of practice, and a tidier and time saving one, a Judge should avoid as much as it is possible to narrate facts of a case. He should do so only when it is absolutely necessary. And such absolute necessity may arise if the facts of the pleaded case and those before him are exactly or substantially the same. He can also narrate facts of a case, where counsel has heavily relied on them, for the only purposes of distinction. There may be other circumstances in which he could narrate facts. But he should be most cautious about it. There is really nothing wrong in narrating facts of a case but there is everything wrong in the judgment being unduly too large and for no justifiable cause other than that all the trial Judge did was to state the facts of the cases. In any case, how many of the cases will he be able to state the facts?
Another complaint was that he cited a number of cases without explaining their relevance. A decision is not the better by the numerous authorities cited by the Judge. That does not mean that the decision should be bare without the leading authorities on the issue. There is nothing wrong in a trial Judge citing authorities based on a principle of law. He may do so in two ways. One, he may state the principle of law and cite the authority or authorities in support. Two, he may cite the authority or authorities followed by the principle or principles of law.
One other attack was the enormous quoted references from decided cases. Some Judges are in love with this style. Some of us think that the more extracts we quote from decided cases the more learned the judgment is. Others think differently. I am in the camp of those who think differently. I do not think a good judgment is determined on the number of long and frequent citations from previous decisions. That is not my style. Some other Judges adopt it very much. While there is a good case for quoting previous decisions, particularly of a superior Court, too much of it, like too much of anything, could be bad. If the frequency is too much (and it could be too much in some cases) the judgment lacks originality.
I think every Judge has a duty to contribute to the development of the law and as long as he does this within the established rules of stare decisis he cannot be faulted.
I think we should avoid as much as possible the citation of long passages from judgments. We should also avoid the frequency of the exercise in a single judgment. Let the original thoughts of the Judge come to bear on the judgment. There is no hard and fast rule in respect of the above, and more particularly in the judgment writing process. As I indicated, the writing of judgment is a matter of the personal style of the individual Judge and it is not like writing a composition in a classroom setting where the teacher dishes out the different stages or points the composition must reach or contain. Judges are of different natures. And so their minds and orientations are different. Therefore their perceptions and analysis of legal matters will be different.
I have carefully examined the ruling which is now a subject of very vehement attack in this appeal. Because of the very heavy weather raised, I managed to read it twice. Frankly I do not think the ruling deserves the heavy bombardment by learned counsel for the appellants. With respect, all he did was to try to regiment the learned trial Judge to write the ruling in a particular way known to him. But that is not fair to the Judge. He cannot be so regimented, like a soldiering apparatus. On the whole, I am of the firm view that the attack on the learned trial Judge is most uncalled for.
I now take the final point and it is the complaint of learned counsel for the appellants that learned counsel for the respondent’s added colour to the briefs by introducing new facts. There is always the temptation on the part of counsel, in the course of preparing briefs, to introduce new facts not before the trial Judge in the process of arguing their client’s case. In a good number of cases, the action is not intentional. Yet there are a few cases where the action is intentional to overreach the adverse party.
In whatever way one looks at the matter, counsel cannot, in law, use the forum of brief writing to introduce facts not before the trial Court. He has no competence to do so, and so he should not do so. Afterall, the facts are not his. They belong to his client. And he has no right to flirt with the facts. I have said it a number of times that he owns the law, in the sense that he is the expert of the law. Since the facts are owned by his client, he must rely on those before the Court. He cannot do more. He cannot even do less. And let it be so.
In the instant case, where the application was fought on affidavit evidence, all counsel were expected to rely on the affidavit evidence and no more. They had no right to move outside in search of more favourable evidence.
I entirely agree with learned counsel for the appellants that in a number of instances counsel for the respondents in their briefs went on an unguarded voyage of discovery for facts not before the Court below. They cannot do so. They do not have a free passage to do so. The law will block any passage that they may explore, and it is blocked now. I do not think I will go into the consequences of my decision on the issue of the new facts introduced by counsel in the briefs, in view of the decision I will reach anon in this matter.
I think I have gone into the matter in some considerable detail. I have no choice than to do so. I indicated the number of pages of the briefs I had to grapple with. I think I have finished. It now remains to say that the appeal is meritorious and it succeeds.
The judgment of this Court is that the ruling delivered by the learned trial Judge on 27th July, 1988 is set aside.
I hereby make the following orders:-
(1) That the 1st to 6th defendants/respondents pay into the Court within 30 days from the date of this judgment the sum of N4, 532,493.00 received from the 9th defendant/respondent in respect of the Iba Community Land compulsorily acquired by the Federal Military Government.
(2) That the 7th and 8th defendants/respondents pay into the Court within 30 days from the date of this judgment the sum of N4, 532,493.00 received from the 9th defendant/respondent in respect of the Iba Community Land compulsorily acquired by the Federal Military Government.
(3) That the Chief Registrar of this Court, shall upon receipt of the amounts stated in (1) and (2) above, pay same into an interest yielding account of the Union Bank (Nig.) Ltd. PLC.
(4) That the said amount paid into an interest yielding account of the Union Bank (Nig) Ltd., PLC, shall abide the final judgment of the Court below.
It is further ordered that the Chief Judge of the Lagos State do re-assign the substantive matter to another Judge of the High Court for hearing.
I award N400.00 costs in favour of the appellants.
Other Citations: (1992)LCN/0137(CA)
