3PLR – CHIEF MICHAEL EMERAH & ANOR V. ADEKUNLE OLADOSUN & ORS

Published by Law Nigeria Admin at October 10, 2018

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR

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CHIEF MICHAEL EMERAH & ANOR

V. ADEKUNLE OLADOSUN & ORS

IN THE COURT OF APPEAL OF NIGERIA

ON FRIDAY, THE 15TH DAY OF JULY, 2011

CA/L/236M/2009

3PLR/2011/29 (CA)

OTHER CITATIONS

BEFORE THEIR LORDSHIPS

CLARA BATA OGUNBIYI, JCA

HUSSEIN MUKHTAR, JCA

MOHAMMED AMBI-USI DANJUMA, JCA

BETWEEN

CHIEF MICHAEL EMERAH & ANOR – Appellants

AND

ADEKUNLE OLADOSUN & 12 ORS – Respondents

REPRESENTATION

Mr. Emeka C. Nwosu – For Appellant

AND

Mr. Ola Faro – For Respondent

MAIN ISSUES

ACTION – PLEADINGS: Whether pleadings serve the primary purpose of stating reliefs in a motion paper

“it is elementary and trite law, I would say, that reliefs in a motion paper is akin to a party’s pleadings. In the same way evidence is given in proof of facts averred on pleadings, the affidavit serves the facts in proof of the relief sought in an application. Putting in another way, while pleadings serve the primary purpose in stating reliefs, it is not in itself evidence. It is the former that births the latter and not visa versa”. Per. OGUNBIYI, J.C.A (P.8,Paras.A-B)

ACTION – RELIEFS: Whether a court can grant a relief which is not claimed or brought by the party in whose favour the order was made

“It is wrong or erroneous for a court to grant an order or relief which is not claimed or brought by the party in whose favour the order was made, for in the same vein, the court which is not a ‘father Christmas or e social welfare institution should not grant to a party an order, or relief or declaration in excess of or outside what he claimed or sought for. The rationale of the rule, which forbids (sic) …, award by the court Contrary to the rule of practice and pleadings is to avoid surprises during proceedings and to ensure fair hearing to the parties without showing favour to one or the other.” Also and again on the same principle, is the case of Lufthansa Airlines V Odiese 2006 7 NWLR (Pt. 978) p. 34 wherein this court at page 85 held and said: “A Court gives only what is asked of it.” From all deductions, and as it has been said times without number, a court is not a father Christmas who in view of the festivities gives out gifts left right and centre, without due consideration of whoever comes to him. Absence of a specific relief leaves room for uncertainty. It could also open a process to an abuse and thus placing the opponent at a disadvantage”. Per. OGUNBIYI, J.C.A (Pp.9-10,Paras.F-D

ACTION – RELIEFS: whether a respondent’s right to fair hearing can be said to have been breached if the other party does not set out all the reliefs being sought for

“A prayer in a motion is akin to pleadings. It must therefore set out succinctly all the reliefs sought including the particulars thereof so as to put the other side on Notice just as the nomenture of the motion itself depicts. Without this having been done, obviously, the right of the respondent to fair hearing cannot be said to have been respected. A fortiori, – It will amount to compounding the injury to an unheard Respondent by taunting him further to proceed to grant a relief to the applicants when the basis and particulars of the relief have not been pleaded by stating them on the motion paper”. Per. DANJUMA, J.C.A (Pp.12-13,Paras.F-A)

MAIN JUDGMENT

CLARA BATA OGUNBIYI, J.C.A. (Delivering the lead ruling):

The motion on notice is dated 27th and filed 31st May 2011 and brought pursuant to order 4 Rule 1 of the Court of Appeal Rules 2010 and seeks the following three reliefs:-

“(i) AN ORDER amending the Notice of Appeal dated 8/8/2008 and deeming the amended Notice of Appeal already filed and served as being properly amended, filed and served on the Respondents the proper fees having been paid.
(i) AN ORDER amending the Brief of Argument filed on 8/7/2009 and deeming the amended Brief of Argument already filed and served as being properly amended, filed and served on the Respondents the proper fees having been paid.

(ii) AN ORDER for leave of the court to raise and argue grounds of appeal on issues not raised and canvassed at the Trial Court
AND for such further or other orders as the Learned court may deem fit to make in the circumstances.”

In support of the application are three paragraphs affidavit by the deponent in the person of one Kamoru Adekola, Secretary to Vin I. Osakwe Esq. of Solicitor of 12/14 Babs Animashun Street, Block “B” Wing National Population Commission, Surulere, Lagos wherein he had the following facts on oath and said:-

(1) That I am the Secretary with the above Solicitor and have his consent and authority and that Appellant to depose to this Affidavit

(2) That Vin I. Osakwe Esq. of Counsel informed me in chambers on 16/6/10 at 8am and I believe him that:-

(a) The leading Counsel in this matter, Emeka C. Nwosu Esq, after reviewing the entire Appeal Records decided that both the Notice of Appeal and Brief of Argument dated 8/8/2008 and 8/7 /2009 respectively should be amended to reflect the true state of the grounds of appeal and the arguments for the Appeal. Shown to me and marked Exhibits “V” and “V2″ are the proposed Notice of Appeal and Brief of Argument respectively.

(b) The Respondents will suffer no prejudice if the Notice of Appeal and Brief of Argument already filed and served on them are amended and it will be in the interest of justice if the processes are amended.

(c) The Appellants need the leave of this Honourable court to raise and argue grounds of appeal on issues not raised or canvassed before the Trial court and no new evidence will be required for the new issues per se manifest on the face of the records.

(3) That I make this Affidavit in good faith believing same to be true and in accordance with the oaths Act”

The learned appellants’/applicant’ counsel Mr. Emeka c. Nwosu in his argument in substantiating the reliefs sought relied on all the paragraphs of the affidavit as well as a proposed notice of appeal and brief of argument. Learned counsel therefore moved in terms and finally sought to withdraw relief 3 of the motion paper.

In response to the application, the respondents did not file any counter affidavit. Their counsel Mr. Ola Faro however and on points of law, opposed same on the ground that having withdrawn relief 3, all the additional grounds to the proposed amended notice of appeal must also be withdrawn. This learned counsel argued because they are fresh issues and that the motion which only seeks to amend the notice of appeal did not further ask for additional grounds of appeal. That the court cannot grant a prayer not asked for and hence the application should therefore be refused and dismissed.

In further submission, the counsel Mr. Nwosu in re- iteration argued that with the additional grounds of appeal being issues of jurisdiction bordering on the competence of the court, relief 3 was a surplusage and therefore unnecessary. This is especially because, with the processes having been signed in the name of a law firm, it is a matter of jurisdiction. Learned counsel to buttress his submission cited the case of Awote V Awodin (1986) 5 NWLR (Pt. 166) 941- at 946 – 945. He therefore urged that reliefs 1 & 2 should in the circumstance be granted as prayed.

With the learned applicants’ counsel having withdrawn relief 3 of their motion paper, an order striking out same is hereby made therefore.

The only question is whether the amendment sought for could be granted having regard to the nature of prayer 1 of the motion paper which did not necessarily state the specific relief sought. The reproduction of the prayer is relevant wherein it seeks as follows:-

‘(i) AN ORDER amending the Notice of Appeal dated 8/8/2008 and deeming the Amended Notice of Appeal already filed and served as being properly amended, filed and served on the Respondent in, proper fees having been paid.”

It was the contention of the learned applicants’ counsel that the additional grounds of appeal sought are as spelt out on the proposed attached “Exhibit V1.” Learned counsel on his further argument also submitted that relief 3 which is seeking for leave to raise and argue grounds of appeal on issues not raised and canvassed at the trial court is a mere surplusage and hence the withdrawal of same which was accordingly struck out.

The grouse of the respondents’ argument centres on the relief sought per the first prayer which counsel argued was very vague. In other words that the relief which seeks for an amendment simplicita did not go further to ask for additional grounds of appeal.

Without having to be labour the point, it is elementary and trite law, I would say, that reliefs in a motion paper is akin to a party’s pleadings. In the same way evidence is given in proof of facts averred on pleadings, the affidavit serves the facts in proof of the relief sought in an application. Putting in another way, while pleadings serve the primary purpose in stating reliefs, it is not in itself evidence. It is the former that births the latter and not visa versa. In the same way and by analogy the reliance by the learned applicants counsel on paragraph 2(a) of the affidavit in support of the application and seeking to introduce additional grounds of appeal is tantamount to putting the cart before the horse. The relief ought to have explicitly asked for additional grounds of appeal on the motion paper and following which “Exhibit V1” would have served as the proof of the existence thereof. The stating of the nature of the amendment sought is very mandatory and which ought to have reflected on the face of the motion paper. Relief should not be contained in an affidavit as wrongfully misconceived by the learned applicants’ counsel.

Furthermore and from the deductive conclusion of the submission by the learned applicants’ counsel, the summary is confusion. This I say because while on the one hand the counsel argued that relief 3 is a surplusage and therefore unnecessary on the other hand and also relying on the averment at paragraph 2(c) of the affidavit in support of the application counsel clearly confirmed that the leave sought is necessary for the amendment in question. The submission which blows both hot and cold is, with all respect contradictory wherein the oral submission is not consistent with the averment made on oath. While the proposed amended notice of Appeal attached to the application and marked “Exhibit V1” presupposes an additional ground of appeal, there is no prayer on the motion supporting such connotation.

For purpose of better comprehension reference can be made to decided authorities relating the duty on a court in granting relief which are not asked for. Readily at hand is the case of F.B.N. Plc V A.C.B. Ltd (2006) 1 NWLR pt. 926 page 438 at 472 wherein this court relied on decisions in the cases of Ekpenyong V Nyong (1975) Z SC. 71; Imam V A.B.U. (1970) NNLR 39; Adefulu V Okulaja (1996) 9 NWLR (Pt. 475) 668 and Omotunde V Omotunde (2001) 9 NWLR (Pt. 718) 252. Specifically reliance was made to the case of Akinboni V Akinboni (2002) 5 NWLR (Pt. 761) 564 at 578 – 9 wherein it was held that: –

Also and again on the same principle, is the case of Lufthansa Airlines V Odiese 2006 7 NWLR (Pt. 978) p. 34 wherein this court at page 85 held and said:

“A Court gives only what is asked of it.”

From all deductions, and as it has been said times without number, a court is not a father Christmas who in view of the festivities gives out gifts left right and centre, without due consideration of who ever comes to him. Absence of a specific relief leaves room for uncertainty. It could also open a process to an abuse and thus placing the opponent at a disadvantage. Equal balancing and fairness should be the order of the day. The parties should be given clear and good notice, well advised and with specific knowledge of the nature of relief sought. Ambiguity leaves room for speculation and untardiness.

The consequential effect of the foregoing on the present application is that the relief, especially the 1st is not comprehensive and explicit. It cannot as rightly submit by the learned respondents’ counsel, serve the purpose of this application which is in the circumstance incompetent and is liable to be struck out. It is hereby struck out.

The 2nd relief seeking an order amending Brief of arguments and deeming same as filed and served is predicated upon relief 1 of the same motion paper. Having declared the 1st relief as incompetent, the same vice has also extended onto and inflicted the 2nd relief and thus rendering it also as incompetent. On the totality of the application it is in other words grossly incompetent and is hereby struck out. There shall be costs awarded in favour of the respondents against the applicants and I assess same at N120, 000.00. Application is struck out with N20, 000.00 costs to the respondents.

HUSSEIN MUKHTAR, J.C.A.:

I am in total agreement with the reasoning and conclusion in the admirable ruling of my learned brother Ogunbiyi, JCA which I hereby wholly adopt as mine.

A motion for amendment of notice of appeal and brief must be precise enough on the reliefs sought for. The reliefs as couched in the instant application are not only inelegant but left at large. The nature of the amendment must be stated and possibly a proposed amended notice of appeal be exhibited for comparison with the original one to spell out the extent and nature of the amendment being sought for. In the absence of so doing, the applicant will not be entitled to be granted what he has not asked for. No court of law will ever grant him a relief he has not specifically prayed for.

All the prayers in the application as couched not being comprehensive and precise are incompetent and render the motion incompetent. Same is accordingly struck out by me. I subscribe to the order made in the ruling as to costs.

MOHAMMED AMBI-USI DANJUMA, J.C.A.:

Having had the privilege of a preview of the lead Ruling just delivered by my Lord, Ogunbiyi JCA, PJ, I find myself in agreement with the conclusion that the Motion for the amendment of the Notice of Appeal and also the amendment of the Brief of Argument has no merit and should fail.

The Applicants, herein, by their motion on Notice had prayed for the amendment of their Notice of Appeal dated 8/8/08 and also for an order amending the Brief of argument filed on 8/7/09. Applicants also sought for an order granting leave to raise and argue grounds of appeal on issues not raised and canvassed at the trial court.

Whether or not the Applicants had withdrawn the third relief to raise and argue grounds of Appeal on issues not raised at the trial, the entirety of this application would still be without merit as the relief No.1 sought is inchoate and uncertain as far as the primary prayer – being prayer No. 1 which forms the substratum of the application is concerned.

There is not indication as to what the amendment sought is, as it is not shown ex facie the motion paper what nature of the amendment sought therein is.
A prayer in a motion is akin to pleadings. It must therefore set out succinctly all the reliefs sought including the particulars thereof so as to put the other side on Notice just as the nomenture of the motion itself depicts. Without this having been done, obviously, the right of the respondent to fair hearing cannot be said to have been respected. A fortiori, – It will amount to compounding the injury to an unheard Respondent by taunting him further to proceed to grant a relief to the applicants when the basis and particulars of the relief have not been pleaded by stating them on the motion paper.

The annexed Notice of appeal containing Grounds of appeal sought to be raised afresh and issues to be distilled there from only exists as evidence in support of unpleaded facts. They go to no issue in the circumstance of this application. By this analogy, I should say that Reliefs shall only be granted per proven claim. See EKPEYONG & ORS V. NYANG & ORS. (1995) 2 S.C. 71 at 84 ALHAJI MURAINO RABIU & 10 ORS. V. T.A. HAMMOND & ORS CA/L/223/97 (July – December) of Court of Appeal, Lagos (Division) judgments and Rulings 2007 Vol. 1; CA/L/408/2005 ALHAJI GANIYU KUTI V. MISS IDIYAT OLUWA delivered on 15th December, 2010. (My unreported decision).

Applicants have to make a claim first and then proceed to prove same. No claim having been succinctly made for an amendment, it is my view that it tantamount to no claim made at all.

It is for this reason that I hold the view that this court should not grant a relief not supported by a specific and specified request of an identified character, as this court is surely not a charitable institution.

See LUFTHANSA AIRLINES V. ODIESE (2006) 7 NWLR (pt. 978) page 34.
In the interest of fairness and justice, this court should not grant the prayers in the face of the tenor of the application as made; as they lack any specific basis for their grant for to do so will amount to granting a relief or order not effectual sought for, thus making a case for the Applicant and gratuitously, for that matter!

It is for the above reasoning and the lucidly supported view of my lord in the lead Ruling which I adopt, that I tm will, and do hereby strike out the application for incompetence and abide by the order as to costs as made therein.