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BEFORE THEIR LORDSHIPS
JAFAARU MIKA’ILU, JCA
MASSOUD A. OREDOLA, JCA
ISAIAH OLUFEMI AKEJU, JCA
ELIZABETH ETIM ENEYO – Appellants
Etubom Archibong B. Cobham – For Respondent
DEBTOR AND CREDITOR – JUDGMENT DEBTOR: Time-bound order of payment made by court guaranteed against property of debtor – When debtor dies before expiration of time without fully satisfying the debt – Liability of his estate/heirs thereto – Relevant considerations
ESTATE ADMINISTRATION: –Existing judicial orders made against deceased owner of estate – When time-bound and relates to the satisfaction of a debt – Duty of estate administrators/ heirs thereto – How considered
CONSTITUTIONAL LAW – FAIR HEARING: – Duty of a court not to breach the fundamental rule of audi alteram partem – Effect of an order of court made in its breach – Whether void and a nullity – Whether that court at the instance of a person affected by the order itself had a power to set it aside, ex debito justiciae
ETHICS – LEGAL PRACTITIONER – MISTAKE OF COUNSEL: – The brief as the work of the counsel to the litigant implying that counsel alone can be blame worthy if any error or omission arises – Whether just to penalize a litigant for any error, mistake, omission or even blunder committed by his counsel
CHILDREN AND WOMEN LAW: Estate administration – Female heir of a deceased female judgment debtor – Execution of judgment for foreclosure against estate of deceased – Judgment given after the death of the deceased – Validity thereof – How treated – Right of heir against creditor – Relevant considerations
PRACTICE AND PROCEDURE – COURTS – APPEAL COURT: – Appeal court – Duty to refrain from unnecessarily interfering with the exercise of discretion by the lower court except where it is, however, patent on the record that the lower court did not do justice in the circumstances of the discretion either as a result of misapprehension of facts or law or by considering extraneous and irrelevant matters or failing to consider relevant matters before it
PRACTICE AND PROCEDURE – COURTS – DUTY OF COURTS: – Constitutional role and duty of courts to decide disputes among citizens on the merits of their cases and not to award punishment for errors (if any) they have made – Duty of court to keep closed the doors of technicality or technical victory in the dispensation of justice
PRACTICE AND PROCEDURE – COURTS – EXERCISE OF DISCRETION: – Court, in the exercise of its discretion – Whether no former decision of the court itself or even that of another court can constitute a precedent or a binding authority otherwise it ceases to be a discretion for application is to be considered on its own merit – Need for court to exercise its discretion judiciously and judicially – Need for judge to apply his reasoning, common sense and raw to a proper examination and consideration of the facts of the case and the evidence before him (usually by affidavit) – Need for judge to realize that his discretion is not totally unfettered, as it is subject to scrutiny by a higher court on appeal
PRACTICE AND PROCEDURE – APPEALS – ISSUES FOR DETERMINATION: – Need for issues for determination to be formulated from the grounds of appeal – Whether it improper to formulate more than one issue from a ground of appeal – Legal effect
PRACTICE AND PROCEDURE – RULES OF CONTEMPT OF COURT: – Whether a person can only be properly described as a contemnor after having been so adjudged by a competent court – Justifications for rules of contempt of court – Whether designed to ensure effective administration of justice and to preserve the integrity of the courts as well as their potency – Whether rules of contempt are therefore not above the constitutional right of party to approach the court for redress which duty the court is not only to do, but should fairly in line with Section 36 of the Constitution of the Federal Republic of Nigeria, 1979 – Instances when a person who has been held in contempt may still seek the exercise of courts’ discretion in a number of instances which include – When he applies to purge himself of the contempt – When he seeks leave to appeal against the order for which he was held in contempt – When he states that his action did not amount to contempt and that in all the circumstances he ought not to be held in contempt – When he applies to defend himself
WORDS AND PHRASES – “MAY” “CONTEMPT OF COURT” – Meaning thereof
ISAIAH OLUFEMI AKEJU, J.C.A (Delivering the Leading Judgment):
At the Calabar Division of the High Court of Cross River State, the Appellant filed a motion on notice on 19th June, 2009 in Suit No. HC/491/2000 for the following orders:
“1. AN ORDER substituting Elizabeth Etim Eneyo of No. 22 Chamley Street, Calabar for deceased defendant/judgment Debtor/Applicant who died in 2007.
The lower court delivered its Ruling on 29th June, 2009 and granted prayer no.1 for substitution, while the remaining 5 prayers were refused.
The appellant was dissatisfied with that ruling and appealed on the three grounds contained in the Notice of Appeal on pages 61-63 of the Records of Appeal.
The motion of the appellant was sequel to the judgment of the lower court in Suit No. HC/491/2000 delivered on 5/2/2006 (pages 1-5 of the Records) which judgment shows that the respondents were the plaintiffs in that suit while one Madam Elizabeth Okon Asuawanaso Duke was the defendant. The Respondents had sought possession of the premises described as No. 22 Chamley Street, Calabar allegedly conveyed to them by the defendant or payment of N375,000 as cost of the property and expenses thereon. The court ordered the defendant to pay the amount of N375,000 with N5,000 cost to the respondent within 3 months failing which the respondents were to take possession.
The defendant/judgment debtor, Madam Elizabeth Okon Asuawanaso Duke could not fully pay the debt within three months before she died and following which there had been protracted processes and proceedings in respect of the judgment-debt before the appellant eventually filed the motion of 19th June, 2009 the ruling of which led to this appeal.
In the Appellant’s Brief of Argument, two issues were formulated for determination as follows:
Whether the substitution of the appellant in the suit on her application is only to enable Respondents levy execution over the property of the deceased judgment debtor in the judgment without affording the substituted appellant the right and privileges as a Party in the suit.
At the hearing of this appeal appellant’s counsel referred to page 3 of his Brief and pointed out that he had abandoned ground 1 of the Grounds of Appeal bothering on the issue of substitution and that the ground remained abandoned, leaving him with two grounds of appeal from which the two issues where distilled.
On issue one, the learned counsel argued that the trial court failed to consider in its ruling of 29/6/2009 that the judgment debtor had died and that her death without substitution of a living person affected the execution of the judgment as any execution without such substitution remains incompetent and invalid. He argued that the lower court lacked jurisdiction to make the order for execution when there was no judgment debtor. He said the substitution of the appellant was to give life to the suit and not to make the respondents to levy execution or possess the deceased judgment-debtor’s property. He further argued that the appellant who was substituted did not enjoy the privilege of being a party which she could have only enjoyed through the granting of the other reliefs moreso that the judgment debt had been paid to court.
On the second issue the learned counsel submitted that the three months period allowed by the lower court in the judgment of 15th February, 2006 .was not an extension of time and was not a stay of execution while the application for stay was not for a further stay.
He contended that the ruling of 19th May, 2008 which the lower court echoed in his ruling now under appeal was itself made without jurisdiction and therefore a nullity having been made when there was no judgment debtor, citing Aburaheem vs. Olufeagba (2007) All FWLR (Pt. 360) 1502. According to the learned counsel, the prayers of the appellant were within the exercise of the lower courts discretion which that court failed to exercise judicially and judiciously in the circumstances of the case. He cited Soloye vs. Sonibara (2002) FWLR (Pt. 95) 221; Oformata vs. Onwuzuligbo (2002) FWLR (Pt. 89) 1246.
He urged this court to set aside the decision of the lower court contained in the ruling of 29th June, 2009 and grant the prayers of the appellant.
In his Respondents’ Brief of Argument, the learned counsel to the respondent raised the following issues for determination:
“1. Whether the Appellant as defendant in the court below obeyed the orders of the court contained in the court’s judgment dated 15th February, 2006 and delivered on 20th February, 2006.
The learned counsel argued that any person against whom an order of the court is made must obey and no application by such person will be entertained until he purges himself of the contempt. He cited Mobil Oil (Nig) Ltd. vs. Assan (1995) 35 LRCN 320; First African Trust Bank Ltd. vs. Ezegbu (1992) 9 NWLR (Pt. 264) 132.
He argued that the appellant who has not brought any application to purge herself of contempt should not be heard, He submitted that the appellant had been adjudged a trespasser and as such was not entitled to the grant of stay of execution, citing Okiti vs. Bahjeson (2000) 14 NWLR (Pt.687) 308. He urged court to dismiss this appeal.
Appellant’s counsel filed a Reply Brief and argued that the issues raised in the Respondents’ Brief did not arise from his two grounds of appeal and did not respond to the issues he formulated in his Appellant’s Brief of Argument. In another vein, the learned counsel submitted that the Respondents’ counsel failed to sign and date the Respondents’ Brief at the back as required by the Court of Appeal Rules, 2007 which has rendered the Brief incurably defective and should be discountenanced.
The forms and contents of briefs before this court are as provided in Order 17 Rules 3 (1-5) and 4 (1-2) of the Court of Appeal Rules, 2007.
The parts that are relevant here are Rules 4 (2) and 3 (1) that:
“4 (2). The Respondents’ brief shall answer all material points of substance contained in the appellant’s brief and contain all points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall mutalis mutandis, also conform to Rule 3 (1), (2), (3), (4) and (5) of this Order.
3(1). The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are in the appellant’s view, the issues in the appeal as well as amended or additional grounds of appeal.”
The signing at the back is not a mandatory requirement of the above Rules and it is improper to import into the Rules what they actually do not provide for.
The brief of the Respondent was settled by counsel, Etubom Archibong B. Cobham of Cobham & Associates. The brief was signed by the same learned counsel at the front page and addressed for service on the appellant’s counsel also at the front page. This to me is a substantial compliance with the above provision of the Rules. The doors of technicality or technical victory have long been closed by the courts in Nigeria and they may never be opened again. The Court has only one constitutional role which is to decide disputes among citizens on the merits of their cases and not to award punishment for errors (if any) they have made. See Inakoju vs. Adeleke (Ledoja”s case) (2007) 4 NWLR (Pt.1025) 423; Abubakar vs. Yar’adua (2008) All FWLR (Pt.404) 1409.
It is particularly significant that the brief is the work of the counsel to the litigant and counsel alone can be blame worthy if any error or omission arises. It is unjust to penalize a litigant for any error, mistake, omission or even blunder committed by his counsel. See Enyibross Food Processing Co. Ltd. vs. NDIC (2007) All FWLR (Pt. 367) 793.
The Respondents have formulated three issues for determination, one more than the appellant’s two issues, an instance of the sympathizer crying more than the bereaved in a case where the Respondents have not filed across appeal. Issues for determination must be formulated from the grounds of appeal. See N V Scheep vs. M. V. “S. araz” (2000) 15 NWLR (Pt. 691) 622. It is also improper to formulate more than one issue from a ground of appeal. See Afrotech Tech, Services (Nig) Ltd. vs. M. I. A. & Sons Ltd. (2000) 15 NWLR (Pt. 692) 730.
A fortiori, a respondent should not formulate more issues than the appellant. The three issues of the Respondents however are about the appellant being a trespasser and a person in disobedience of the order of the lower court, and so ordinarily they are still two issues.
The Respondents’ counsel has argued that the appellant was a trespasser and a contemnor who does not deserve the discretionary powers and should not even be heard by this court. The record of appeal does not support this position of the learned counsel. There is no record of any charge or trial of the appellant and a finding of guilt for contempt either in or facie curie. A person can only be properly described as a contemnor after having been so adjudged by a competent court. I should perhaps also add that the rules of contempt of court are designed to ensure effective administration of justice and to preserve the integrity of the courts as well as their potency. The rules of contempt are therefore not above the constitutional right of party to approach the court for redress which duty the court is not only to do, but should fairly in line with Section 36 of the Constitution of the Federal Republic of Nigeria, 1979.
Therefore as it has been judicially pronounced, a person who has been held in contempt may still seek the exercise of courts’ discretion in a number of instances which include:
(b) When he applies to purge himself of the contempt;
(b) When he seeks leave to appeal against the order for which he was held in contempt;
(c) When he states that his action did not amount to contempt and that in all the circumstances he ought not to be held in contempt;
(d) When he applies to defend himself.
See F.A.T.B. vs. Ezegbu (1992) 9 NWLR (pt. 264) 132; Huang vs. Bello (1990) 6 NWLR (pt.159) 671; Rastico Nig. Ltd. vs. S.G. De Surveillance S. A. (1990) 6 NWLR (pt. 1S8) 608.
The prayers of the appellant are within the equitable powers of the court and they call for the exercise of court’s discretion. The issue therefore is whether the lower court properly exercised its discretion and arrived at the justice of the case.
When it comes to the exercise of courts’ discretion, it is significant that the discretion must be exercised judiciously and judicially. In otherwords the judge in that situation has the desire to do justice as his primary role. He is to apply his reasoning, common sense and raw to a proper examination and consideration of the facts of the case and the evidence before him (usually by affidavit). The judge is not in a wonderland searching for materials outside those presented by the parties themselves, He must always realize that his discretion is not totally unfettered, as it is subject to scruting by a higher court on appeal. see Eronini vs. Iheuko (1988) 2 NWLR (pt. 101); Babatunde vs. P.A.S & T.A. Ltd. (2007) 13 NWLR (pt.1050) 113.
The appeal court will refrain from unnecessarily interfering with the exercise of discretion by the lower court where it is however patent on the record that the lower court did not do justice in the circumstances of the discretion either as a result of misapprehension of facts or law or by considering extraneous and irrelevant matters or failing to consider relevant matters before it, the appeal court will interfere and correct the injustice. See In Re: Alase (2002) 10 NWLR (Pt.776) 553; Oduba vs. Houtmangracht (1997) 6 NWLR (Pt.508) 185; Oyekanmi vs. NEPA (2000) 125 SC (Pt.1) 70; T.S.A. Industries Ltd. vs. Kama Investment Ltd. (2006) All FWLR (Pt.300) 1564; Osuji vs. Ekeocha (2009) All FWLR (Pt.490) 614; Ehidimhen vs. Musa (2000) 4 SC (Pt. II) 165.
The affidavit of the appellant filed in support of the motion on pages 40-42 of the record contains the following depositions inter alia:
Judgment in Suit No.HC/30/2005 (sic), was given on 15th February, 2006 in which it was adjudged that she pays the sum of N375,000.00 and cot (sic) of N5,000.00 within 3(three) months or vacate the property for the 1st plaintiff.
The material part of the respondents’ Counter affidavit at pages 54-55 of the record are:
(7) The judgment-debtor never applied for instalmental payment, rather it was this same Applicant who did and even deposed to the Affidavit in Support of that Application filed on 16th March, 2006 and dated 15th March, 2006.
(8) That paragraph 6 of the Affidavit is admitted but I wish to here state that obedience of court order is not meant to be in part but the whole.
(9) That paragraph 7 of the Affidavit being false is vehemently denied, the writ of possession as shown is dated the 1st day of July, 2008 and not 2009 claimed by the deponent therein, half truth is characterize of the applicant.
(10) That my Solicitor A. B. Cobham informs me and I verily believe him that execution can be levied against the Estate of a deceased person as in paragraph 6 is therefore not admitted.
(11) That paragraphs 9 and 10 of the affidavit only to the extent that applicant and her cohorts were not parties to the suit.”
One of the orders sought by the appellant was the setting aside of the Ruling dated 19th May 2008. The applicant alleged that the Ruling was delivered against the interest of the judgment-debtor after her death and the estate was not brought into the matter while even the counsel that represented the judgment-debtor was not given notice of the application that produced the Ruling. In otherwords that the sacrosanct rule of fair hearing was not respected and obeyed by the lower court. All these facts remained undisputed by the respondents.
Section 17 of Judgments (Enforcement) Rules does not permit a judgment creditor to levy execution of the deceased judgment debtor without recourse to the legal representative or estate of the deceased.
The section says:
“If any person against whom a judgment has been given shall die before execution has been fully had thereon, application for execution thereof may be made against the legal representative or the estate of the person so dying as aforesaid and if the court shall think proper to grant such application, the judgment may be executed accordingly.”
The use of the first “may” in this Rule in my view does not reduce the mandatoriness of compliance therewith as the only means of attaining justice. It is an instance where the word “may” should be read note mandatoriness,
There is no part of the High Court (Civil Procedure) rules of Cross River State that grants jurisdiction to the lower court to make orders against a person who to the knowledge of the court had died before the proceedings and it was equally wrongful for that court to treat the application of the respondents leading to the order of 19th May 2008 as ex parte or without hearing the party affected by the order, or a representative of the estate.
A court is not allowed to breach the fundamental rule of audi alteram partem. The order of 19th May, 2008 was not only void, it was a nullity and that court at the instance of a person affected by the order itself had a power to set it aside, ex debito justiciae. See Okafor vs. Att. Gen. Anambra State (1991) 6 NWLR (Pt. 200) 659; Eke vs. Ogbonda (2006) 18 NWLR (Pt. 1012) 506; F.B.N. Plc vs. T. S. A. Ind. Ltd. (2010) 15 NWLR (Pt 1216) 247.
The trial court did not only refuse to set the order aside, the learned trial judge made the ruling of 19th May, 2008 the fulcrum of the decision in the instant application. Hence the phrase such as, “I said on that day,” that appeared in the ruling under contention as reference to the earlier ruling sought to be set aside. In short the learned trial judge felt himself bound by the manner in which he had exercised his discretion in the previous application. It perhaps needs to be stated here that in the exercise of its discretion, no former decision of the court itself or even that of another court can constitute a precedent or a binding authority otherwise it ceases to be a discretion for application is to be considered on its own merit. See Dokubo Asari vs. F. B. N. (2007) All FWLR (Pt. 375) 558.
The lower court granted the prayer for substitution of appellant and refused the remaining prayers including the extension of time to pay which was the reason stated for the substitution. Again the record is clear that the prayer for extension of time was refused because, in the thinking of the Learned Trial Judge, what he had previously granted in his judgment of 15/2/2006 were extension of time to pay and stay of execution of the judgment. I say with respect to the learned judged that this is another misapprehension of law as the Rules of the lower court do not support that position.
The power of the lower court to fix the time and mode of payment of judgment debt is under Order 35 Rules 4 of High Court of Cross River State (Civil Procedure) Rules 2008 while the power to grant extension of time to take any step, including matters relating to the judgment itself is under Order 5 Rule 4 of the same Rules.
Order 35 Rule 4 Provides:
The judge at the time of making any judgment or order or at anytime afterwards, may direct the time within which payment is to be made or other act is to be done, reckoned from the date of the judgment or order or from some other point of time as the judge deems fit and may order interest at a rate not exceeding 10% per annum be paid upon any judgment.”
Order 5 Rule 4 states:
“The Judge may, as he deems fit, either before or after the expiration of the time appointed by those Rules or by any judgment or order of court, extend abridge the time for doing any act or taking any proceedings. The proviso is the payment of additional fee to court for default.
From the foregoing provision of the Rules, Order 5 Rule 4 is wider than Order 35 Rule 4, and an order made under Order 35 Rule 4 is still capable, of being extended under Order 5 Rule 4, where the situation so demands. It was therefore erroneous for the lower court to have refused the extension of time sought by the appellant on the believe that what he granted in his judgment of 15/2/2006 amounted to extension of time and that it foreclosed any other application for extension of time.
The question that should agitate a judicial and judicious mind is the justice of the substitution granted by the learned judge without the other orders sought. The court itself had given the original judgment debtor the right to pay money and only in default of which the respondents could take possession. The judgment-debtor died and the appellant was to take her place. By refusing other prayers, the lower court merely granted the substitution so that the appellant could put her head in the hanging noose of the respondents who would readily take possession. This is not by any means judicious moreso that it was not the respondents that sought the substitution.
The lower court did not properly consider the evidence before him and the circumstances of the case in arriving at its decision to refuse the prayers of the appellant and this occasioned a miscarriage of justice.
Consequently I find merit in this appeal and it is allowed. The decision of the lower court in respect of the refusal of appellant’s prayers in the Ruling dated 29th November, 2009 is set aside, and in its place I order as follows:
No cost of this appeal is awarded.
JAFAARU MIKA’ILU, J.C.A.:
I have gone over the draft of the lead judgment of my learned brother Isaiah Otufemi Akeju, JCA.
I also find merit in this appeal and I allow it. I make the same order as in the lead judgment.
I award no costs.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.:
I have read before now, the lead judgment just delivered by my learned brother Isaiah Olufemi Akeju, JCA. I am in full agreement with him on his reasoning and conclusion thereon. Indeed, he has covered the issues canvassed in this appeal and I do not intend to add anything thereto. I also adopt the same as mine. In the premise, I also find merit in the appeal. It is accordingly allowed, I also abide by all the consequential orders made therein, inclusive of the order regarding costs.