SBM Services (Nigeria) Limited & Ors V. Catherine Sede Okon & Ors (2003)
LawGlobal-Hub Lead Judgment Report
SIMEON OSUJI EKPE, J.C.A.
The respondents as plaintiffs commenced this action against the appellants as defendants in the High Court of Cross River State in the Calabar Judicial Division by a writ of summons accompanied with a statement of claim filed on the 24th of June, 1999.
In paragraph 59 of the statement of claim, the respondents claimed reliefs against the appellants as follows:
“Where the plaintiffs’ claim against the defendants jointly and severally as follows:
(i) The sum of N485, 744.70 (four hundred and eighty-five thousand, seven hundred and forty-four Naira, seventy kobo) being money due to the 1st and 10th plaintiffs as total benefits after the calculation of their benefits by the defendants.
(ii) The sum of N54, 272.60 (fifty-four thousand, two hundred and seventy-two Naira, sixty kobo) being the total money due to the 1st plaintiff as salary for the month of August, 1998 and as the unpaid balance for educational assistance.
(iii) The sum of N117, 697.08 (one hundred and seventeen thousand, six hundred and ninety-seven Naira, eight kobo) being the unpaid balance of the total benefits due to the 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 11th and 12th plaintiffs after the calculation of their benefits and which balance was not paid to them as a result of the wrongful deductions made by the defendants.
(iv) The sum of N11, 941.80 (eleven thousand, nine hundred and forty-one Naira, eighty kobo) being money outstanding in favour of the 4th plaintiff as unpaid leave allowance for the year 1998.
(v) The sum of N2,665,140.00 (two million, six hundred and sixty-five thousand, one hundred and forty Naira) being the total money due to the 7th, 8th, 9th and 11th plaintiffs as building grants from the 1st defendant.
(vi) The sum of N2,254,740.00 (two million, two hundred and fifty-four thousand, seven hundred and forty Naira) being the total money due to the 7th, 8th, 9th and 11th plaintiffs as building grants from the 1st defendant.
(vii) The sum of N504, 160.17 (five hundred and four thousand, one hundred and sixty Naira, seventeen kobo) being the total money due to the 10th and 12th plaintiffs as prorated building grants from the 1st defendant.
(viii) The sum of N725,371.76 (seven hundred and twenty-five thousand, three hundred and seventy one Naira, seventy-six kobo) being the total money due to the 13th-19th plaintiffs as prorated land grants from the 1st defendant.
(ix) The sum of N28, 412.60 (twenty-eight thousand, four hundred and twelve Naira, sixty kobo) being money due to the 10th plaintiff as the unpaid salary for the month of August, 1998.
(x) The sum of N160, 700.00 (one hundred and sixty thousand, seven hundred Naira) being money due to plaintiffs as their golden handshake with the 1st defendant.
(xi) The sum of N950, 000.00 (nine hundred and fifty thousand Naira) being money due to the plaintiffs as their travelling/repatriation allowance from the 1st defendant.
(xii) The sum of N1, 400,934 (one million, four hundred thousand, nine hundred and thirty four Naira) being money due to the plaintiffs as ex gratia award from the 1st defendant.
(xiii) Interest of 10% per annum of all the monies claimed herein against the defendants beginning from the 31st day of August, 1998 till the day of judgment, and thereafter interest of 21% per annum until the judgment sum is finally liquidated.
(xiv) An order that a medical examination of the plaintiffs be conducted by a medical practitioner of their own choice who also shall treat the plaintiffs of any sickness that may be diagnosed by him as traceable to the 1st defendant, at the expense of the 1st defendant.
(xv) An order requesting the 5th defendant to disclose to the, plaintiffs the number of shares held by them in the 1st defendant and how dividends are calculated and to also issue the plaintiffs with their share certificates.”
The appellants filed memorandum of appearance and their statement of defence dated 15th July, 1999. In paragraph 37 of the statement of defence they averred as follows:
“37(i) The defendants claim and avers (sic) that the suit herein is affected by the doctrine of estoppel per rem judicata, as same subject matter herein to wit terminal benefit (sic) of the plaintiff (sic) has been determined and judgment entered between same parties in suit No. C/295/98.
(ii) That the suit be dismissed with substantial cost against the plaintiff (sic) and that same is not entitled to any cost whatsoever.
(iii) That the suit is frivolous, vexation and as act of the Oliver Twist is always asking for more.
The appellants also filed two motion on notice dated 15th day of July, 1999. One of the motion was for an order striking out the names of the 2nd, 3rd, 4th and 5th defendants from the suit, they not being necessary parties. The other motion on notice was for striking out the suit as the High Court had earlier entered judgment in suit No.C/295/98 between the same parties and for the same subject matter, which judgment is still in existence and not appealed against. Both motions were each accompanied by an affidavit in support.
The grounds of the application for striking out the suit were:
(1) Estoppel per rem judicatem
(2) Abuse of court process
(3) Some persons listed as plaintiffs did not instruct the plaintiffs’ counsel.
On 12th of October, 1999, the learned trial Judge, Hon. Justice S. A. Obi heard the preliminary objection to the motion for striking out the suit to which the learned counsel for the appellants replied. The arguments hinged on the purport of Order 24 rules 1 and 2 of the Cross River State High Court (Civil Procedure) Rules, 1987, which deal with demurrer.
It was contended by the learned counsel for the respondents at the court below that the motion to strike out the suit was premature as the statement of defence had not been filed by the appellants before filing the motion to strike out the suit.
It was stressed in the court below that the appellants should have filed their statement of defence before addressing the issue of striking out the suit by the court. In his reply, the learned counsel for the appellants rightly conceded to the rules about demurrer but pointed out that the appellant had filed their statement of defence in the court below on the 15th of July, 1999.
In his ruling delivered on the 28th of October, 1999, the learned trial Judge, Obi. J. disbelieved the assertion by the learned counsel for the appellants that the statement of defence had been filed in the court below. He then made scathing remarks in his ruling and castigated the appellants’ counsel at pages 93 to 94 of the record of appeal thus:
“He (i.e. learned counsel for the appellants) argued that he had filed their statement of defence but the court has gone through or perused the whole file and nothing like a statement of defence allegedly filed by the defendants/respondents could be seen. I am not impressed by the deliberate act of the defendants/respondents by attempting to mislead the court by submitting that they have filed their statement of defence when in reality nothing of that nature exists. We are all ministers in the temple of justice and as such everyone taking part should say nothing lent (sic) the truth as that is very unethical. The learned counsel to the defendants/respondents should henceforth desist from such malpractice popularly called 419.” (Italics are mine for emphasis)
The learned trial Judge thereafter upheld the preliminary objection and accordingly struck out the appellants’ motion to strike out the suit on the ground of non-compliance with Order 24 rules 1 and 2 of the Cross River State High Court (Civil Procedure) Rules, 1987.
Being dissatisfied with the ruling of the learned trial Judge the appellants with the leave of the court below sought and obtained, appealed against the said ruling to this court on a notice of appeal predicated on two grounds of appeal. The two grounds of appeal read thus:
“Grounds of appeal
1. The learned trial Judge misdirected himself when he held that the statement of defence was not in the court’s file, whereas the statement of defence was in fact in the court’s file then.
Particulars
i. The memorandum of appearance, preliminary objection and statement of defence were filed at the High Court Registry on the 15th day of July, 1999.
ii. The statement of defence was in the court’s file on the 12th October, 1999 when the application for preliminary objection was argued by counsel.
iii. The statement of defence was also in the court’s file during and even after the ruling of the honourable court.
2. The learned trial Judge misdirected himself and acted in excess when he stated thus:
“I am not impressed by the deliberate act of the defendants/respondents by attempting to mislead the court, when in reality nothing of that nature exists. The learned counsel to the defendants/respondents should henceforth desist from such malpractice popularly called 419.”
Particulars
i. If the Honourable Judge was thorough in going through the file, he would have found the statement of defence.
ii. The action of the learned counsel for the defence was not criminal and in any case did not deserve this kind of strictures from the honourable court.
iii. The effect of this statement of the honourable court is to mar the character, and integrity of the learned counsel.”
In accordance with the rules of this court, the parties through, their counsel filed their briefs of argument and formulated issues for the determination of the appeal.
The appellants raised two issues in their brief for the determination of the appeal and they are:
“(1) Whether the learned trial Judge was in error in reaching the conclusion that there was no statement of defence in the court file having regard to the records of the court and proof of its existence in the court file.
(2) Whether there was any justification for the derogatory remarks contained in the ruling of the trial Judge and what remedy is available to the appellants and their counsel.”
The respondents also raised two issues in their brief of argument which read:
“1. Whether the learned trial Judge was in error to have declined to act on processes not before him.
2. Whether the learned trial Judge was not entitled to make passing remarks and or comments in the course of delivering a ruling and whether such comments and or remarks are appellable.”
Arguing issue No.1 in the appellants’ brief of argument, the appellants contended that the record of appeal shows conclusively that the appellants filed a statement of defence which was part of the records of the court and that the learned counsel for the appellants was right in calling the attention of the learned trial Judge to the existence of the statement of defence in the court’s file. But the trial court failed to check its record or the court’s file to establish that fact.
He referred to Osafile v. Odi (No.1) (1990) 3 NWLR (Pt. 137) 130, (1990) 5 SCNJ 118; Credit Alliance Financial Services Ltd. v. Antoine Mallah (1998) 10 NWLR (Pt. 569) 341; Waziri v. The State (1997) 3 NWLR (Pt. 496) 689 and submitted that counsel has the liberty to refer to the records of the court and the court will find out the information and take judicial notice of it.
He contended that traditionally once a trial Judge has difficulty in seeing a document in the court’s file, he makes an enquiry from the registrar of the court who will confirm the existence or otherwise of the document from the court’s file. It was submitted that once a document is filed in the court’s registry, the knowledge of the registrar is imputed to the court as the registrar is a servant or agent of the court; and even if the learned trial Judge was not aware of its existence in the court’s file, the registrar was aware of it.
He alluded to Steyr (Nig.) Ltd. v. De luke M. Enterprises Ltd. (1999) 12 NWLR (Pt. 631) 458. He referred to two affidavits in the record of appeal dated 4/11/99, deposed to by Andrew Okpataku, Esq. learned counsel to the appellants who personally filed all the processes including the statement of defence which the trial Judge read before granting the leave to appeal. He contended that the two affidavits have not been controverted and so were admitted by the court which can rely on them for the purpose of establishing facts.
The record of appeal, he argued, contains the appellants’ statement of defence at pages 54 to 65 and this is a clear evidence that the appellants filed their statement of defence in time before the motion to strike out the suit was moved.
It was therefore submitted that there is a presumption of correctness in favour of the record of appeal and the case of Awodi v. Kagoro (1998) 4 NWLR (Pt. 547) 601 at 605 was alluded to. It was also submitted that the record of appeal is binding and the court below had to confine itself to it as the statement of defence filed by the appellants was in the court’s file at all material times. References were made to Pan African Bank Ltd. v. James Ede (1998) 7 NWLR (Pt. 558) 422 at 432; Albasma (Nig.) Ltd. v. Salami (1998) 4 NWLR (Pt. 546) 448.
The learned counsel for the respondents in his brief of argument on issue No.1 submitted that the function of the court is to decide between the parties to an action before it only on the basis of what has been presented and demonstrated. And whatever has not been so presented, tested and demonstrated cannot command the attention of the court and cannot form the basis of its decision, as it is wrong for a court to examine documents outside the proceedings of the court. He referred to Ibrahim Ohida v. Military Administrator, Kogi State (2000) 12 NWLR (Pt. 680) 24; (2000) FWLR (Pt. 12) 2107 at page 2111. It was contended that the court’s file is the repository of all the processes filed in the court and unless the processes are in the court’s file, they cannot be considered by the court.
The learned counsel to the respondents further submitted that a court cannot rely on documents not before it, neither can it go outside its case file in arriving at a decision and cited Fumudoh v. Abora (1991) 9 NWLR (Pt. 214) 210; Oke v. Aiyedun (1986) 2 NWLR (Pt. 23) 548; Okafor v. Okafor (2000) 11 NWLR (Pt. 677) 21; (2000) FWLR (Pt. 1) 17. As to the filing of the statement of defence, the learned counsel, argued that it is one thing to file a process, while it is yet another thing for the same to be in the court’s file. It was his contention that ordinarily a filed process ought to be in the court’s file but in practice that is not so, as it does happen that a filed process may not be in the court’s file. It was therefore submitted by the respondents’ counsel that it is idle for the appellants to contend that they and their counsel had discharged their own responsibility by filing and paying for service of the statement of defence.
He reasoned that it does not lie in the mouth of the appellants to contend that having filed and paid for service of the process, they have done their duty and should not be visited with the court registry’s lapse, as it is expected to ensure that service is effective. He referred to the case of Steyr (Nig.) Ltd. v. De luke M. Enterprises Ltd. (supra) relied upon by the appellants’ counsel and submitted that it does not apply. Finally, it was submitted that the learned trial Judge was not in error when he declined to act or take notice of the appellants’ statement of defence that was not in the court’s file.
I have given careful consideration to the submissions of both counsel. Incidentally, issue No.1 in the appellants’ brief and issue No.1 in the respondents’ brief have the same connotation and or similarity. From the arguments of both counsels, the question is whether the appellants’ counsel actually filed their statement of defence in the suit and if so whether the learned trial Judge was in error to have declined to make use of it in the determination of the motion before him praying the court to strike out the suit pursuant to Order 24 rules 2 and 3 of Cross River State High Court (Civil Procedure) Rules, 1987.
Order 24 of Cross River State High Court (Civil Procedure) Rules, 1987 deals with proceedings in lieu of demurrer. By rule 1 of Order 24 aforesaid, it is provided that no demurrer shall be allowed.
However, rules 2 and 3 of Order 24 provide respectively as follows:
“Rule 2:
Any party shall be entitled to raise by his pleading any point of law and, any point so raised shall be disposed of by the Judge who tries the cause at or after the trial; provided that by consent of the parties, or by order of the court or a Judge on the application of either party, the same may be set down for hearing and disposed of at any time before the trial.
Rule 3:
If, in the opinion of the court or a Judge the decision of such point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set off, counter-claim, or reply therein, the court or Judge may thereupon dismiss the action or make such other order therein as may be just.”
In Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) 546 it was held that under Order 22 rule 3 of the High Court of Lagos State (Civil Procedure) Rules, 1972 which is in pari materia with Order 24 rule 3 of Cross River State High Court (Civil Procedure) Rules, 1987, a defendant who knows that there is a point of law which can determine an action in his favour in limine, can apply to the court by way of motion or as a point of his pleading to dismiss the action without evidence having been taken. In Ogigie v. Obiyan (1997) 10 NWLR (Pt. 524) 179; (1997) 54 LRCN 2631 at page 2637, it was held that the objection by the defendant should be raised at the time of filing the statement of defence.
As I have earlier stated, the question is whether the appellants’ counsel actually filed the appellants’ statement of defence which the court below held that he did not file. This question can easily be determined by this court by reference to the record of appeal and the case file of the court below in this case which are in the custody of this court. It is trite law that a court can suo motu make reference to its record or to its case file and make use of any document it finds necessary. See Fumudoh v. Abora (1991) 9 NWLR (Pt. 214) 210; Onagoruwa v. Adeniyi (1993) 5 NWLR (Pt. 293) 317; Okeke v. A.- G., Anambra State (1997) 9 NWLR (Pt. 519) 123. In West African Provincial Insurance Co. Ltd. v. Nigeria Tobacco Co. Ltd. (1987) 2 NWLR (Pt. 56) 299 it was held that a court is entitled to look at its record.
However, a Court of Appeal cannot go outside the record of appeal in search of evidence favourable to a party. See Pan African Bank Ltd. v. James Ede (1998) 7 NWLR (Pt. 558) 422. A record of appeal is presumed to be correct and it is the duty of anyone who wishes to contradict the record to establish otherwise. See Awodi v. Kagoro (1998) 4 NWLR (Pt. 547) 601. For the purpose of the determination of an appeal before an appellate court, the court is bound by the record of appeal. See Albasma (Nig.) Ltd. v. Salami (1998) 4 NWLR (Pt. 546) 448.
In the instant case, I have closely examined the record of appeal before me in order to satisfy myself if the statement of defence was ever filed by the appellants or their counsel and when it was so filed.
I am satisfied from my examination that the statement of defence is part of the record of appeal and it covers pages 54 to 65 of the record.
The said statement of defence is dated 15th July, 1999. As to the date of filing of the statement of defence in the court below, I have looked at the revenue receipts issued by the Registry of the court below and endorsed on the statement of defence as to the date the statement of defence was filed. The statement of defence is contained in the original court file of the court below at pages 58 to 62. Page 62 thereof contains the assessment of the fees charged for filing, service, etcetra , of the said statement of defence totalling the sum of N22.00 (twenty-two Naira) and paid on revenue receipt No. 06353010 dated 15/7/99, which indicated the date of filing the statement of defence.
In furtherance of my examination of the court’s file, I also saw the appellants’ original motion on notice dated 15th July, 1999 for striking out this suit. That motion was filed on 15/7/99 along with the statement of defence and carries revenue receipt No. 06353010 with the assessed fees totalling N51.00 (fifty-one Naira) paid. It is at page 31 of the case file. In view of these findings above, there is no doubt in my mind that the appellants filed the said statement of defence in the suit on 15/7/99 contemporaneously with the filing of the motion to strike out the suit which was argued in the court below on the 12th of October, 1999.
It is crystal clear that the said statement of defence filed on 15/7/99 was already in the court’s file before the motion to strike out was argued. With reasonable diligence, the learned trial Judge could have found or located the statement of defence in the case file on 12/10/99, when the motion was heard by him. Once a document is in the court’s file the knowledge of it by the Registrar is imputed to the court. See Steyr (Nig.) Ltd. v. De Luke M. Enterprises (1999) 12 NWLR (Pt. 631)458.
Undoubtedly in my view, the learned trial Judge was gravely mistaken when he concluded in his ruling that there was no statement of defence filed by the appellants, and stated at page 93 of the record of appeal thus:
” … but the court has gone through and perused the whole file and nothing like a statement of defence allegedly filed by the defendants/respondents could be seen.”
It is a correct but elementary practice in our courts that when a document is brought to the court registry for filing and service and the fees are accordingly paid as assessed by the registry, the party filing the document does not assume any other responsibility for the filing and service of the document, except where necessary, he is called upon by the bailiff to act as a pointer to identify the party to be served with the document as a process of the court. It is not his duty to file the document in the court’s file or to send it to the Judge as that is the responsibility of the registry.
The party cannot be punished or penalized for any dereliction of duty by any of the court’s officials who neglects or fails to file the document in the appropriate court’s file or to send it to the Judge. It is my view that the mistake or fault of a court official should not be visited on a party who has done what he is required to do to have his document filed in the court and served on his opponent. In the instant case, the appellants have done what was required of them by filing the statement of defence in the court below and paying the appropriate fees for the filing and service on the respondents whose address for service was clearly stated in the said statement of defence. I therefore, in the circumstances, resolve issue No.1 in favour of the appellants.
Issue No.2 in the appellants’ brief of argument is similar to issue No.2 in the respondents’ brief of argument. Both issues deal with the scathing remarks by the learned trial Judge against the appellants’ counsel. The learned counsel for the appellants conceded that in view of the doctrine of judicial immunity and also by the provision of the High Court law which gives absolute protection to the learned trial Judge, except where he acts without his jurisdiction, and since the appellants are not alleging that the learned trial Judge lacked jurisdiction to entertain the case, the learned trial Judge enjoys absolute privilege against suits.
He referred to Egbe v. Adefarasin (1985) 1 NWLR (Pt. 3) 549; (1985) 1 NSCC 643; Ndefo v. Obiesie (2000) 15 NWLR (Pt. 692) 820. In his view, it is not open to the appellants and their counsel to question the integrity or honesty of the trial Judge, he however argued that the only option open to the appellants is to appeal against the remarks of the trial Judge to be impugned for error and alluded to the case of The Secretary, two Central L. G. v. Adio (2000) 8 NWLR (Pt. 667) 115. He therefore urged the court to set aside the ruling of the learned trial Judge.
For the respondents, it was submitted by their counsel that a Judge is at liberty to make observations, passing remarks and/or comments in the course of delivering a ruling as in this case and cited Odukwe v. Ogunbiyi (1998) 8 NWLR (Pt. 561) 339; (1998) 6 SCNJ 102 at page 107. It was also submitted that the remarks or comments may be related or unrelated to the issue for consideration in the ruling as such comments or remarks are expressions of the Judge’s opinion.
They are not the reason for the decision but are obiter dicta. And as such they cannot afford the basis for an appeal. He contended that it is not every pronouncement or remark made by a Judge that can be made the subject of appeal and it does not matter how harsh the comment may be, but only such that qualify as a decision under section 318 of the Constitution of the Federal Republic of Nigeria that are appellable. He referred to Shuaibu v. N.A.B. Ltd. (1998) 5 NWLR (Pt. 551) 582; (1998) 4 SCNJ 109 at 112; Onokerhoraye v. Igbinovia (2001) II NWLR (Pt. 724) 341; (2001) FWLR (Pt. 73) 155 at page 158; Okafor v. Okafor (2000) II NWLR (Pt. 677) 21; (2000) FWLR (Pt. 1) 17 at 20. The issue under consideration, in my view, deals with the concept and scope of judicial immunity under our judicial and legal system.
The concept of judicial immunity has its origin in the rules of English common law and is of the highest antiquity. The general rule at common law is that persons exercising judicial functions in a court or tribunal are immune from all civil liability whatsoever for any thing done in their judicial capacity. In Sirros v. Moore (1974) 3 AER 776 at 781-782 Denning, M. R. traced the original of the concept of judicial immunity even beyond the year 1613, when he said thus:
“Ever since the year 1613, if not before it, it has been accepted in our law that no action is maintainable against a Judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The order which he gives and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the Judge was under some gross error or ignorance, or actuated by envy, or hatred and malice, and all uncharitableness, he is not liable to any action. The remedy of the party aggrieved is to appeal to a Court of Appeal or to appeal for habeas corpus or a writ of error or certiorari, or take some such step to reverse his ruling. Of course, if the Judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal courts. That apart, however, a Judge is not liable to an action for damages.”
See Egbe v. Adefarasin & Anor. (1985) 16 NSCC (Pt. 1) 643; (1985) 1 NWLR (Pt. 3) 549; Ndefo v. Obiesie (2000) 15 NWLR (Pt. 692) 820; Onitiri v. Ojomo 21 NLR 19 at page 23. In The Secretary, Iwo Central L. G. v. Adio (2000) 8 NWLR (Pt. 667) 115 the Supreme Court observed that the maxim “de fide et officio judicis non recipitur quaestio, sed de scientia, sive sit error juris, sive facti, ” the honesty and integrity of a Judge cannot be questioned, but his decision may be impugned for error, either of law or of fact. In England as in this country, Nigeria, the reason for judicial immunity is found on public policy because of the need to protect Judges and indeed all judicial officers whether of superior court of record or not, from wanton attack in their capacity as Judges. It is necessary for the free and impartial administration of justice, that the person administering it should be uninfluenced by fear or unbiased by hope. In Egbe v. Adefarasin (supra) it was further stated, at page 651, citing the case of Miller v. Seare (1977) 2 WM. BL. 1141 at page 1145 thus:
“In all the cases where protection is given to the Judge giving an erroneous judgment, he must be acting as Judge. The protection in regard to the superior courts is absolute and universal; with respect to the inferior (courts) it is only when they act within their jurisdiction.”
(Italics mine for emphasis)
From the above authorities, it is crystal clear that the scope of judicial immunity is absolute, universal and unqualified and so long as the Judge is acting or performing in his judicial capacity, he is protected.
Mention has also to be made that apart from the common law principle of judicial immunity, section 56(1) of the High Court Law of Cross River State also provides for the immunity of Judges. It reads:
“No Judge or person appointed under the provisions of section 7 of this Law to act as a Judge shall be liable for any act done or thing said by him in the course of any proceedings before him, provided that at the time he, in good faith, believed himself to have jurisdiction in such proceeding.”
Therefore, the relevant question to ask in the instant case is whether the learned trial Judge is legally protected against the derogatory or uncomplimentary remarks or comments complained of by the learned counsel for the appellants and not whether there was any justification for such remarks or comments made by the learned trial Judge.
It is common ground that the said remarks or comments which have been reproduced in extenso earlier in this judgment were made by the learned trial Judge in the course of delivering his ruling on the motion of the appellants to strike out the respondents’ suit pursuant to Order 24 rules 2 and 3 of the Cross River State High Court (Civil Procedure) Rules, 1987 on proceedings in lieu of demurrer.
Guided by the authorities crystallized and outlined above, I answer the poser in the positive. In my considered view, the learned trial Judge is eminently protected by law on the ground of judicial immunity in respect of the uncomplimentary remarks or comments complained of since he was acting in his judicial capacity. But whether he was justified to do so is another side of the coin.
Nevertheless, he is covered by the principle of judicial immunity as propounded in the above decided cases. It does not even seem to me that the said remarks or comments are appellable or can be made the subject matter of appeal. In my candid view, the said remarks or comments no matter how uncomplimentary they might be, were but passing remarks against the appellants’ counsel by the learned trial Judge in the course of delivering his said ruling. They did not amount to a decision within the meaning of section 318(1) of the 1999 Constitution of the Federal Republic of Nigeria, where a decision is defined to mean, in relation to a court, any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation. There is a world of difference between the decision of a court which is the ratio decidendum of the case for the purpose of an appeal and a mere observation or passing remark of the court which is an obiter dictum.
In Black’s Dictionary, 6th edition at page 1262, the latin word ratio decidendi is defined to mean – the ground or reason of decision; the point in a case which determines the judgment. In the same Law Dictionary at page 1072, the word obiter dictum – is defined to mean – words of an opinion entirely unnecessary for the decision of the case, a remark made, or opinion expressed by a Judge in his decision, upon a cause, “by the way”, that is, incidentally or collaterally, and not directly upon the question before him, or upon a point not necessarily involved in the determination of the cause.
It is trite that an appeal is a challenge to the decision of the court appealed against. A good ground of appeal must constitute a complaint against the decision of the court. See Nwanji v. Coastal Services (Nig.) Ltd. (1999) 11 NWLR (Pt. 628) 641 at 658.
In Babalola v. The State (1989) 4 NWLR (Pt. 115) 264 it was held that an appeal presupposes the existence of some decision appealed against and in the absence of such a decision on a point there cannot possibly be an appeal against what had not been decided against a party. See Oredoyin & Ors. v. Arowolo & Ors. (1989) 4 NWLR (Pt. 114) 172. It is the law that obiter dicta are not made the focus of a ground of appeal; rather the ground of appeal should represent that complaint of an appellant from a decision taken against him as may be contained in the ratio decidendi of the case. A ground of appeal on obiter dicta is of no moment and deserves no merit. See Oyetibo & Co. v. Ron. Justice Ajose Adeogun (1996) 6 NWLR (Pt. 452) 29; Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387 at 429; Ede v. Omeke (1992) 5 NWLR (Pt. 242) 428 at page 435.
The remarks or comments by the learned trial Judge complained of by the appellants’ counsel are mere obiter dicta and therefore cannot be made the subject of appeal as they did not affect the decision of the trial court.
It is not every pronouncement made by a Judge that can be made the subject of appeal. See Shuaibu v. Nigerian-Arab Bank Ltd. (1998) 5 NWLR (Pt. 551) 582; (1998) 4 SCNJ 109 at page 124; Onokerhoraye v. Igbinovia (2001) 11 NWLR (Pt. 724) 341; (2001) FWLR (Pt. 73) 155 at page 172.
Having said thus, I therefore hold that issue No.2 is resolved against the appellants.
In the circumstance ground 2 of the grounds of appeal, which is predicated on the remarks or comments by the learned trial Judge and complained of by the appellants’ counsel, which are obiter dicta, is incompetent. In the same vein, issue No. 2 which is distilled therefrom, is also incompetent. They are hereby struck out.
In view of the decision I have reached on issue No.1, I therefore, hereby allow the appeal in part. The ruling of the learned trial Judge, Obi, J. delivered on 28th day of October, 1999, striking out the appellants’ motion on notice dated and filed on 15th July, 1999, praying the court below to strike out the suit is hereby set aside. The suit No. C/283/99 is remitted to the Chief Judge of Cross River State for assignment to another High Court Judge for rehearing and determination of the said motion of the appellants and the substantive suit.
In view of the circumstances of the case, I make no order as to costs.
Other Citations: (2003)LCN/1410(CA)
