Chief Diepriye S. P. Alamieyeseigha V. Hon. Justice Emmanuel & Ors (2007)

LawGlobal-Hub Lead Judgment Report

SULEIMAN GALADIMA, J.C.A.

On the 16th of December, 2005 on behalf of the appellant, now the applicant, a writ of summons and statement of claim were filed against the defendants (now the respondents) jointly and severally for a number of declarations, particularly that the purported report of the Panel headed by the 4th respondent upon which his purported impeachment was carried without notice to or hearing from him and which report was submitted to the 3rd respondent on 9/12/2005 was illegal, unconstitutional, null and void and of no effect whatsoever. No defence had been filed to the action when various preliminary objections were filed by the respondents. Anxious to prosecute this appeal the appellant departed from the rules of this court and compiled the record of appeal. This was followed by his filing of the brief of argument to which the respondents have responded by equally filing their various briefs of argument.

However, on the 21/12/2006, the appellant filed this motion on notice seeking leave of this court to amend the relief set out on page 118 of the record of appeal as follows:

“(1) An order that this Honourable Court allow the appeal and rather than remitting the case back to the lower court to exercise powers vested on it under section 16 of the Court of Appeal Act and determine the appellants’ case as constituted as if this Honourable Court is sitting as the trial court.

(2) An order of this Honourable Court exercising its powers to hear and determine the suit as constituted in the High Court of Bayelsa State by construing the attached document – exhibit A in support of this application.

(3) AND for such Order or further Orders as this Honourable Court may deem fit to make in the circumstances. ”

In support of the application is 15-paragraphed affidavit of Mr. Babatunde Osadare, a counsel in the Chambers of Professor A. B. Kasunmu, SAN, states in paragraphs 4-14 as follows:

“4. That this action was filed on the 16th of December, 2005 and all the defendants entered appearance on the 22nd of December, 2005.

5. That apart from filing the Memorandum of Appearance none of the defendants filed a defence to the plaintiffs claim as required by the rule of this Honourable Court before filing their notices of preliminary objection.
6. That I am informed by Prof. A. B. Kasunmu, SAN and I verily believe same to be true that the only defence, the defendants have to the plaintiff’s claim is the issue of jurisdiction.
7. That it is necessary for this Honourable Court to invoke section 16 of the Court of Appeal Act and hear and determine the appellant suit as constituted.
8. That the appellant has barely five months to be in office and if this application is not expeditiously determined, the res will be destroyed.
9. That the matter before the Bayelsa High Court can be determined and the order sought made without resorting to oral evidence.
10. That the appellant was impeached based on the report of the Panel to the House of Assembly. A certified true copy of the Report of the Panel is hereby attached and marked exhibit A. Attached and marked as exhibit B is a certified true copy of the notice of impeachment with attachments.
11. That the Panel did not give the appellant an opportunity to defend himself in person or through a Legal Practitioner of his own choice.
12. That the Panel decided on the Report on the grounds that the facts supporting the allegations are self evident and do not require any proof.
13. That the only issue to be determined is whether the impeachment of the appellant by virtue to the Panel’s Report in exhibit A is in breach and contravention of section 188(6) of the Constitution of the Federal Republic of Nigeria, 1999 and if so whether the appellant is entitled to be restored to office.
14. That this Honourable Court can determine the entire suit by construing exhibit A.”

The 1st, 2nd, 3rd, 4th and 11th respondents filed their respective counter affidavit in opposition to the appellant/applicant’s application. The 5th-10th respondents did not; but raised some preliminary objection to the competence of the appeal and the application under consideration.

On 5/2/2007 when this application came up for hearing, learned Senior Counsel, Professor A. B. Kasunmu, SAN, in moving the motion referred to the supporting affidavit and the exhibits, particularly exhibit A. He submitted that the appellant has undoubted right to have his relief amended since the granting of such does not determine the success of appeal at this stage. It is further submitted that apart from filing of the Memorandum of Appearance none of the respondents filed a defence to the appellant’s claim as required by the rule of this court before filing their notices of preliminary object. He urged that it is necessary for this court to invoke section 16 of the Court of Appeal Act to hear and determine the appellant suit as constituted. That the appellant was impeached based on the report of the Panel to the House of Assembly. That the Panel did not give the appellant opportunity to defend himself in person or through a legal practitioner of his own choice.

Learned Senior Counsel for the 1st, 4th and 11th respondents, Mr. Rowland Otaru, SAN referred us to the 26-paragraphed affidavit of the respondents filed on 2/2/2007. He contended that no evidence has been adduced in proof of averments contained in the appellant’s statement of claim in this case. That should the appellant’s appeal succeed, the respondents will file their statement of defence out of time to the statement of claim of the lower court. It is then the respondent will have the opportunity to cross-examine the appellant and his witnesses; after all the pleadings have been duly completed and exchanged. It is argued that there was no originating summons supported by affidavit filed at the lower court. He frowns at this application as being strange and novel in asking this court to invoke its power as requested by the applicant. That there is need to adduce oral evidence by the appellant and his witnesses in proof of serious allegations contained in the statement of claim, since the appellant did not plead exhibit A attached to the affidavit in support of the application, if it is granted the respondents will not have the opportunity to present their case nor rile their statement of defence to the appellant’s statement of claim. It is contended that the respondents filed their preliminary objection in limine at the lower court and this was in line with the rule of this court and the Supreme Court decision in Elabanjo v. Dawodu (2006)15 NWLR (Pt.1001) 76. It is submitted that this case is a radical change from the case of Adeleke v. Oyo State House of Assembly (2006) 16 NWLR (Pt. 1006) p. 608. It is urged that in the interest of justice the application should be refused.

Learned Senior Counsel for the 2nd respondent, Tayo Oyetibo, SAN referred to his counter affidavit of 6 paragraphs. He does not have problem with the first prayer provided the respondents will be given the 0pp0l1unity to be heard on the point as well. He contended that since the application was brought under S.16 of the Court of Appeal Act, the exercise of the power of court must be done in accordance with the practice and procedure. That prayer 2 cannot be granted now because this court is only vested with appellate jurisdiction. It is not a court of first instance. See sections 239 and 240 of the 1999 Constitution. He argued that exhibit A cannot be construed except it is first admitted in evidence. On the authority of the Anatogu v. Iweka II (1995) 8 NWLR (Pt. 415) 547 at 588 learned counsel for the 2nd respondent has submitted that the conditions for reception of fresh evidence, have not been fulfilled.

Learned counsel for the 3rd respondent, Mr. Ayo Adedipe referred to his counter affidavit of 5 paragraphs. He associates himself with the submissions of learned counsel for the 1st, 2nd, 4th and 11th respondents. He submitted however, that if the application is granted it will be prejudicial to the interest of the 3rd respondent since this court will be placed on an awkward situation of ordering pleadings and taking evidence and so on. That the time the preliminary objection was taken and determined by the trial Judge, pleadings in the case were yet to be settled. He urged us to refuse the application.

Chief Ladi Rotimi Williams, SAN, learned senior counsel for the 5th-10th respondents hinged his first ground of preliminary objection on S .24 of the Court of Appeal Act. He posed the question whether the ruling of the court below was interlocutory or final. He argued that if it is interlocutory, then the appellant had clearly not had his appeal filed within two weeks as borne by page 110 of the record and a clear violation of S.24 (2)(a) of the said Act, as the ruling of the lower court was delivered on 23/3/2006 and the appeal on it was filed on 24/4/2006. Since the ruling is interlocutory and the appeal against it having not been filed within the stipulated period, no valid application hinged on it can be brought before this court.

The learned senior counsel second ground of objection is based on S.308 which restricts legal proceedings, civil or criminal. It is submitted that no proceedings is maintainable against the 2nd respondent being not a nominal party. Reliance was placed on the case of Tinubu v. I.M.B. Securities Plc (2001) 16 NWLR (Pt. 740) 670. The third ground of objection is based on the scope and competence of this court as he thinks S.16 of the Court of Appeal Act does not apply to this matter in which the appellant did not come by way of originating summons unlike Adeleke v. O.S.H.A. (supra). That the respondents are prepared to lead evidence to show that the impeachment proceedings against the appellant were conducted properly and in accordance with the provisions of the Constitution.

Briefly replying on all the issues raised by the respondents’ counsel on point of law learned senior counsel, Professor A. B. Kasunmu has contended that the decision of the court below declining jurisdiction to entertain the appellant’s action, is a final decision, not interlocutory for which S.24 (2)(a) of the Court of Appeal Act could be said to apply. He submitted that the appellant has filed his appeal timeously. On the interpretation of sections 188(10) and 308 of the 1999 Constitution, learned senior silk has submitted that the decision of the lower court based on the sections is being challenged on appeal and that it is premature to hear and determine the issue at this stage.

The appellant is seeking the leave of this court to amend the relief set out on page 118 of the record of appeal. The relief hitherto sought reads:

“To allow the appeal and remit the case for trial before another Judge of the Yenagoa High Court, Bayelsa”

He now seeks the order of this court instead of remitting the case to the lower court for trial to rather exercise powers vested on it under S.16 of the Court of Appeal Act and determine the case as if the court is sitting as the trial court. S.16 of the Court of Appeal Act to gives this court powers to exercise full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as a court of first instance. These powers have been spelt out in detail in Order 1 rule 20 of the Court of Appeal Rules, 2002. The primary object is to enable the Court of Appeal to make any order or give such judgment which the court below ought to have given for the speedy and satisfactory dispensation of justice according to law without remitting the suit back to the trial court for any appropriate actions which the circumstances of the case may demand. The general purpose of these powers conferred on the Court of Appeal is to permit it to exercise the jurisdiction of a court of first instance with regard to the appeal before it. See Jadesinmi v. Okotie Ebolz (1986) 1 NWLR (Pt. 16) 264 at 276 and Faleye v. Otapo (1995) 3 NWLR (Pt.381) 1 at 33. There are undoubtedly, limits of those powers. Such limits are to be determined case by case and not by a priori general propositions. Appellant has shown in paragraphs 6, 7, 8, 9, 10, 11, 12, 13 and 14 of the supporting affidavit reproduced above, why he has sought to amend his relief to that effect. My understanding of the objection of the learned senior counsel for 1st, 4th and 11th respondents is that if the application is granted the respondents will not have the opportunity to present their case nor file their statement of defence to the appellant’s statement of claim and that they will also not have the opportunity to cross-examine the appellant based on the contentious averments contained in the statement of claim. Procedurally and indeed in law, these are not factors sufficient for me to refuse the grant of this application.

Appellant has shown some special grounds making it necessary to grant the application as already exposed in paragraphs 6-14 of the affidavit in support of the application and the statement of claim and the verifying affidavit of 6/12/2005 in the record and the documents exhibited thereto.

Learned counsel for the 2nd respondent does not have objection as to the granting of the first prayer provided he will be given the Opportunity to be heard as the substantive suit cannot be determined by this court in the absence of the 2nd respondent’s defence. Of course the granting of the application does not give automatic guarantee for the success of the appeal. With due respect to the learned counsel for the 3rd and 5th-10th respondents, the grounds upon which their opposition to this application are based are those that have been strenuously canvassed in the court below and decision taken and against which the appeal has been filed. The defence the respondents have to the appellant’s claim is the issue of jurisdiction.

The second relief seeks for an order of this court to exercise its power to hear and determine the suit as contained in the High Court of Bayelsa State by looking into exhibit A. It is deposed to in the appellant supporting affidavit that he was impeached based on exhibit A the report of the panel and exhibit B the Notice of Impeachment with attachments. If the issue to be determined, as .shown in the supporting affidavit is whether the impeachment of the appellant is by virtue of exhibit A, then the exhibit becomes relevant. It ought to be looked into before proper, just and fair determination of this case can be made since the panel decided on the report and concluded that the facts supporting the allegations are self evident and do not require any proof. I am yet to come across any such law which does not allow a court to grant leave to amend in order to regularize or remedy claim in a writ of summon or other court processes, so as to do substantial justice. This is the only way the court will be in a position to determine the real questions or issues raised by or pending in the proceedings.

On a calm view of the facts and circumstances in this case and taking into consideration the affidavit in support of the application, and documents exhibited, my obvious conclusion is to allow the application of the appellant and it is so allowed. I make no order as to costs.

Other Citations: (2007)LCN/2222(CA)