3PLR – AGWUNA III V. ISIDINSO
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS – 3PLR
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AGWUNA III
V.
ISIDINSO
COURT OF APPEAL
(ENUGU DIVISION)
MAY 9TH, 1996
3PLR/1996/13 (CA)
OTHER CITATIONS
5 NWLR (Pt. 451) 705 at 724
BEFORE THEIR LORDSHIPS
OKAY ACHIKE;
NIKI TOBI;
EUGENE CHUKWUEMEKA UBAEZONU.
REPRESENTATION
Uju Ikeazor – for the Appellant
Philip Umeadi (Jnr) – for the Respondents
MAIN ISSUES
PRACTICE AND PROCEDURE- Judge’s record book and Cause List – Resolution of conflict between
The Record Book of the Judge has more probative value than the Cause List
PRACTICE AND PROCEDURE- Hearing of matters – Duty on court to observe dates fixed for
PRACTICE AND PROCEDURE-Audi alteram partem – Principle of
PRACTICE AND PROCEDURE-Power of Court of Appeal to receive further evidence
Respondents had filed an action asking for certain declarations in respect of the Enugwu Ukwu Town Constitution and Enugwu Ukwu Community Development Union (ECDU) Constitution.
Following the above, respondents then filed a motion ex parte for interlocutory injunction restraining the appellants from performing any act in respect of the revision of the Constitution pending the determination of the
suit.
The learned trial Judge declined the order(s) sought but rather made the motion on notice to the respondents.
Appellants filed a counter affidavit to the motion and joined issues with the respondents.
The motion suffered a few adjournments and when it was finally called it was on a day the parties were absent except the 2nd respondent and counsel for the respondents.
The motion was not held on that date (26/1/94) but rather adjourned to 27th April 1994. However, the motion
was not heard on the adjourned date of 27th April 1994 but on 22nd April 1994, five days earlier. Parties were absent except 2nd and 3rd respondents. Their counsel moved and argued the motion without opposition.
The trial Judge granted the interlocutory injunction sought.
Dissatisfied appellant appealed to the Court of Appeal.
{Issue}
Whether the learned trial Judge was right in hearing the application for interlocutory injunction and thereby granting an order of injunction against the
appellants in their absence, five days earlier than the day the motion was fixed for hearing.
MAIN JUDGEMENT
{Held- Summary}
- Judge’s record book and Cause List – Resolution of conflict between
The Record Book of the Judge has more probative value than the Cause List because of the following
reasons:
(a) The Record Book bears the handwriting of the Judge, who is the master of not only the Book but also the
entire proceedings.
(b) It is the major, if not the only document, for the appeal decision and the entire appellate system
(c) The Cause List is extracted from the Record Book. by this I mean the information in the cause list is
obtained from the Record Book.
(d) The Cause List is prepared by staff of the Court’s Registry without supervision on the part of the Judge.
Hearing of matters – Duty on court to observe dates fixed for
A trial judge and indeed an appellate court must keep to the date or dates fixed for hearing of matters and cannot depart from such date or dates except with the consent of the parties. While a judge has the power to re order a date earlier fixed for hearing a matter with the consent of the parties, he has no power to suo motu hear a matter on a date not earlier agreed upon by the parties. Where a judge has cause to shift the date of hearing a matter, either forward or backwards, he must record the reason or reasons for the shift.
This must be done with the consent of the parties.
- Audi alteram partem – Principle of
To rely on the rule of natural justice of audi alteram partem to support a cause of action, plaintiff must show that he is entitled to a hearing in the particular circumstances; that he was denied that hearing or opportunity to be head; or that the hearing he was given was unfair and therefore no hearing at all”.
- Power of Court of Appeal to receive further evidence
Under section 16 Court of Appeal Act, 1976 and Order 1 Rule 20(3) the Court of appeal is empowered to receive further evidence on questions of fact, either by oral examination in court by affidavit, or by deposition taken before an examiner or commissioner as the court may direct.
- Meaning of inadvertent
Inadvertent means not properly attentive, negligent, unobservant, heedless characterized by want of attention hence unintentional.
- Disciplinary powers of court
In the exercise by the court of its disciplinary jurisdiction arising from discordance to carry out orders, the court is entitled to restructure the order sought by the applicant to fit or reflect the disciplinary order of the
court.
{Held- Lead Judgment}
Delivered By TOBI, J.C.A.
The respondents, as plaintiffs in the lower court, filed an action asking for certain declarations in respect of the revision of the Enugwu Ukwu Town Constitution and Enugwu Okwu Community Development Union (ECDU) Constitution. The writ was filed on 14th April 1992. On 15th June 1992 the respondents filed a motion for interlocutory injunction in the usual restraining language of stoppage on the part of the appellants from performing any act in respect of the revision of the Constitution, pending the determination of the suit.
Let me read the order sought:
“An order of interlocutory injunction restraining the defendants/respondents their servants, agents, and privies from-
(a) Holding any meeting on Saturday the 27th day of June, 1992 or on any other day or date to consider or in any manner deal with the document titled. The Revised Constitution of Enugwu Ukwu Town and of Enugwu Ukwu Community Development Union (ECDU) of 1992, prepared by the 14 man Enugwu Ukwu
Unity Committee or any other Enugwu Ekwu Unity Committee pending the determination of this suit.
(b) Implementing the provisions of the said document or in any manner adopting the same or any other document or documents purporting the same to be the Constitution or revised Constitution of Enugwu Ukwu Town and Enugwu Ukwu Community Development Union (ECDU) prepared by Justice
Akpamgbo Constitution Review/Drafting Committee, Enugwu Ukwu and approved by the Anambra State Government”.
The appellants as defendants filed a counter affidavit to the motion. That was on 26th May, 1993. They joined issues with the respondents, the crux of which appear in paragraph 3 of the counter affidavit.
“That the much vaunted act sought to be restrained by the plaintiffs/applicants has already taken place”
It is clear on the record that the learned trial Judge heard the motion ex parte on 15th April, 1992. He was in some problem in granting the motion ex parte He could not find himself granting the motion. He decided to take the usual and correct course. He said:
“Really there is no motion before the court. This application for an interim order, drawing from the wording of the motion papers. Should be an application brought within an application on notice. It should be an application to take care of the status quo up to the time the motion on notice is heard. But there is
no motion on notice either filed in court or before me. In the circumstances, I would order that this application be made on notice to the parties to be affected namely, the respondents, and the order herein served on them. This is the order of this court. The case is adjourned to 29th April 1992 for hearing of the
motion now on notice.”
The motion for interlocutory injunction suffered a few adjournments. I do not find it necessary to go into the different dates of adjournment but I must not skip that of the 27th of April, 1994. That is the telling date. The following is recorded at page 126 of the record of proceedings.
“Madubueze my learned Senior Advocate has indicated his intention to handle the motion personally.
Unfortunately, he had an urgent message yesterday to go to Lagos. He has asked me to convey his regret for his absence from court. I ask for an adjournment of the motion for interlocutory injunction.
Court: The motion for interlocutory injunction is adjourned to 27th April 1994 for hearing.”
The above was recorded on 26th January 1994. On that day the parties were absent, except 2nd plaintiff. It does not appear from the Record that the appellants were represented on that day. The date was taken only by Mr. A
O Madubueze, counsel for the plaintiffs who are now respondents in this appeal. The motion was not heard on the adjourned date of 27th April, 1994 but on 22nd April, 1994, five days earlier. Parties were absent except 2nd
and 3rd plaintiffs Mr. P E G Umeadi, SAN moved and argued the motion, understandably without opposition. It was a one-counsel affair. The motion was adjourned to 25th May, 1994 for Ruling Came 25th May, 1994 and the
learned trial Judge gave his ruling. He examined the law in some admirable detail and granted the interlocutory injunction.
Dissatisfied with the ruling of the learned trial Judge, the appellants have come to this court Briefs were filed and duly exchanged. Appellants formulated the following four issues for determination.
(a) Whether the learned trial Judge was right in hearing the application for interlocutory injunction and thereby granting an order of injunction against the defendants/appellants at their back, five days earlier than the day the motion was fixed for hearing.
(b) Whether the Learned Trial Court was right in granting a retrospective order of injunction or making an order of injunction in an act which had been completed long before the application was filed.
(C) Whether the learned trial Judge was right in failing to limit the scope of the order of injunction he made to the relief sought by the plaintiffs/respondents on their motion paper.
(d) Whether upon the facts and circumstances of this case, the said ruling of 25/5/94 (subject matter of this Appeal) could be allowed to stand, when the said ruling is not only against the weight of evidence, but has occasioned a miscarriage of justice”.
On the other hand, respondents formulated the following two issues for determination:
(i) Whether the requirement of audi alteram partem is breached when the hearing date in the record of proceedings is an obvious error in view of Exhibit B and appellant and counsel’s consistent absence from court without explanation?
(ii) Whether the learned trial Judge was not on firm grounds in making the order appealed from in the circumstances of this case?
While the appeal was pending in this court, respondents filed a motion dated 10th May, 1995 for an order granting leave to the respondents/applicants to adduce further evidence in this appeal In the interest of the speedy hearing and disposal of the appeal the court decided to hear the motion and the appeal on the same day. That was on 28th February 1996.
Learned counsel for the applicant/respondent, Mr. Philip Umeadi (Jnr.) move the motion under Order 1 rule 20 (3) of the Court of Appeal Rules, 1981 as amended. Relying on the 11 paragraph affidavit in support, and exhibit
A – D learned counsel submitted that the exhibits which are certified copies of cause list, by their nature, attract presumption of regularity, pursuant to section 114(1) of the Evidence Act, Cap 112 Laws of the Federation Nigeria. 1990. He also submitted that the presumption of regularity, which attaches to the Record of the lower , is rebuttable. Relying on Words and Phrases Legally Defined. Volume IV, page 277, learned counsel submitted that Cause List is a part of the record of the court. Calling the attention of the court to be conduct of
the parties in the matter, counsel urged the court to allow the motion.
Mrs. Uju Ikeazor for the respondent, in her reply, relied on the counter affidavit and urged the court not to place any weight on Exhibits A-D even if they are admitted. She contended that the exhibits are extraneous documents
that normally do not form Record of Appeal. Relying on Sommer and Others v Federal Housing Authority (1992) 1 NWLR (pt 219) 548, learned counsel submitted that the court should prefer the record of the lower court to the endorsement in the Cause List She urged the court to dismiss the appeal.
Order 1 Rule 20(3) under which the motion is brought, empowers this court inter alia to receive further evidence on questions of fact, either by oral examination in court by affidavit, or by deposition taken before an examiner or commissioner as the court may direct. The above apart section 16 of the Court of Appeal Act. Cap 75 Laws of the Federation of Nigeria, vests enormous blanker powers on the court as if it is a court of first instance.
Although section 16 does not make this court a court of first instance a combined reading of the section and order 1 rule 20(3) clearly empowers this court to grant the motion before us. I therefore grant the motion as prayed.
The effect is that the Cause List exhibits A, B, C, and D are hereby received or admitted as additional evidence in the appeal. The weight to be attached to them is quite a different matter, which has to wait till the appeal is considered on its merits.
I now go to the main appeal. Learned counsel for the appellants, Mrs. Uju Ikeazor submitted that the order made by the learned trial Judge without hearing from the appellants adversely affects their legal rights and a breach of
the natural justice rule of audi alteram partem. Counsel submitted that the order is void as it also offends the letter and spirit of section 3(1) of the 1979 Constitution. She cited Enabirhire v. Atamabo (1967) NMLR 253; Adigun v.Attorney-General of Oyo State (1987) 1 NWLR (Pt.53) 678 at 683-684; Nwokoro v. Onuma (1990) 3 NWLR (Pt.136) 23; Woluchem v. Wokoma (1974) 3 S.C 153.
Learned counsel further submitted that the learned trial Judge was in serious error in granting an order of injunction in an act, which had been, completed long before the motion was filed. Referring the court to paragraph 3 of the counter affidavit learned counsel claimed that the paragraphs not being controverted should be deemed to have been admitted by the respondents. She cited Nwosu v Imo State Environmental Sanitation Authority.(1990) NWLR (Pt.135) 688;Ilechukwu v. Iwugo (1989) 2 NWLR (Pt. 101) 103; John Holt Nigeria Limited and Another v. Holts African Workers Union of Nigeria and Cameroons (1963) 2 SCNLR 383; (1963) 1 All NLR 379; and Attorney-General Anambra State v. Okafor (1992) 2 NWLR (Pt.224) 396.
Learned counsel contended that the learned trial Judge was wrong and acted without jurisdiction when he issued the order in that the terms of the same were wider in scope than the relief’s specifically prayed for In both the motion and in the substantive claim. She cited Akapo v Hakeem Habeeb. Counsel also submitted that there is no evidence to support the findings of the learned trial Judge. She urged the court to allow the appeal.
Learned counsel for the respondents, Mr. Philip Umeadi (Jnr.) contended that the absence of noticed is a sine qua non to a successful plea of audi alteram partem. He submitted that the appellants had due notice of the pendency of the motion for interlocutory injunction and the adjourned date of 22nd April, 1994 notwithstanding the disparity in dates occasioned as it were, by the inadvertence of the learned trial Judge. Learned counsel raised a number of points at page 4 of his brief in respect of the dates, particularly as in Exhibits A B and C in the
affidavit in support. He correctly identified the issue involved towards the end of the page and cited Udeamah v Nigerian Coal Corporation (1991) 3 NWLR (pt 180) 477 at 490 in respect of the natural justice rule of audi alteram paratem Counsel submitted that the appellants deliberately neglected to take advantage of the opportunity to be heard as they saw no need to bother with the outcome of the motion. He cited Ojukwu v. Governor of Lagos State (1985) 2NWLR (Pt.10) 806 at 823.
On the issue of the injunction, learned counsel submitted that although an injunctive order generally cannot lie against a completed act it is the law that when a defence to an application for an order for prohibitive injunction
is based on the illegality of the actions of the defendant, a court is bound to make consequential orders setting aside the actions. Citing Secretary Iwo Local Government v. Adigun (1992) 6 NWLR (Pt.50) 723 at 750, learned
counsel submitted that contrary to paragraph 3 of the counter affidavit of the appellants the act of ratification was not completed when the learned trial Judge granted the injunction. He also cited Akapo v. Hakeem-Habeeb
(1992) 6 NWLR (Pt.247) 266.
It was also the submission of learned counsel that there is a compelling reason for parties to maintain the status quo before an interlocutory application is determined. He cited Opara v. Ihejirika (1990)6 NWLR (Pt.156) 291 at
304 and Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt.18) 621 and urged the court to dismiss the appeal.
In her response, learned counsel for the appellant’s submitted that the arguments of counsel for the respondents were solely predicated on speculations. Since there is nothing on the face of the printed records to support the contention that the appellant had due notice that the motion (the subject matter of this appeal) was to be heard on 22nd April, 1994. There is no evidence that hearing notice was issued and served on the appellants in respect of
the fixture for the 22nd April, 1994. learned counsel argued Relying also on the case of Udemah v Nigerian Coal Corporation (supra) cited by counsel for the respondents, learned counsel for the appellants submitted that the requirements or ingredients of law for reliance on the breach of natural justice rule in the case are fully present or met in this appeal.
Learned counsel urged the court not to rely on Exhibits A to D as they do not form part of the Record. She cited Sommer and Others v Federal Housing Authority (supra) She submitted in the alternative that even if the Exhibits can be part of the Record, it is too late in the day for the Exhibits to be added to the record as application in that regard ought to have been made on 3rd April 1995. She has submitted in the alternative that even if it is not too late to add the Exhibits to the Record, the court should not prefer the Exhibits to the record book of the court.
Learned counsel also dealt with the issue of the acts sought to be prevented by the respondents motion and other aspects raised in the respondents brief. She further urge the court to allow the appeal.
The crux of the matter is whether the order made by the learned trial Judge on 25th May, 1994 is valid in the light of the facts of the case. I have set out the facts in some chronological sequence above. I do not want to repeat myself. I should deal with the Cause Lists Exhibits A, B, C and D. Learned counsel for the respondents heavily relied on them. Exhibit A is the Cause List for the 26th day of January, 1994. The case is No. 1 on the list.
There is a recorded that the case was adjourned to 22/5/94. Exhibit B is the cause List for the 22nd day of April, 1994. The case is No. 3 on the list. There is a record that the case was adjourned to 25/5/94 for Ruling exhibit C
is the Cause List for the 27th day of April, 1994. The case is No. 1 on the list. There is a record that the case was adjourned to 27/7/94 most likely for hearing as the letter (H) immediately follows the date (27/7/94).
Although the record of the court (page 126) for 26th January, 1994 shows that the motion was adjourned to 27th April, 1994 for hearing exhibit A fixed a 22/4/94 date for the hearing of the motion. Came 22/4/94, the motion
was heard. Although there is nothing in the record to show that the ruling would be delivered on 25th May, 1994.
Exhibit B so indicated. On 25th May, 1994 the Ruling was delivered. Both the record and Exhibit D confirm this. Contrary to page 126 of the Record, Exhibit D did not list the motion for hearing.
The worrying aspect of this matter is how the motion which was fixed for hearing on 27th April, 1994 heard on 22nd April, 1994, five days earlier than scheduled. That is the real problem. Learned counsel submitted that the disparity in dates was occasioned by the inadvertence of the learned trial Judge. He advocated a number of reasons at pages 4 and 5 of the brief, in an apparent effort, to justify what he called the inadvertence of the learned trial Judge. I am rather flabbergasted that learned counsel imputed inadvertence to the Judge and not the clerk of court or registrar in the circumstances. He conveniently placed the fault on the learned trial Judge and apparently exonerated the clerk of court or registrar. Why does learned counsel think that the negligent person is the Judge and not the clerk of court or registrar? Who is a more impossible human being in
the scheme of affairs in the matter? The trial Judge or the clerk of court or registrar?
In the tradition of the court system, the Judge reads out the date of adjournment, which is reflected in the Cause List. It is never the other way round. Again, in the tradition of the court system, if the Judge, for any reason (and this is rare) reads out a different date of adjournment other than the one agreed by the parties, counsel react quickly to put the record straight by giving the correct date, which is the date agreed by the parties. It is clear on
the Record that on 26th January 1994 Mr. A O Madubueze led Mr. Obi Morah for the plaintiffs/applicants, who are respondents in this appeal. If the learned trial Judge inadvertently read out a wrong 27th Mr. A O Madubueze led Mr. Obi Morah for the plaintiffs/applicants, who are respondents in this appeal, If the learned trial Judge inadvertently read out a wrong 27th April 1994 date, I expected Mr. A O Madubueze to correct it immediately.
Or could it be inferred that the learned trial Judge read out the so called correct date of 22nd April, 1994 and inadvertently read out 27th April, 1994? Is such inference fair to the learned trial Judge? I ask once again; why is it that the only negligent human being in the whole matter is the Judge? Once again, I feel flabbergasted in the way learned counsel dropped the blame at the door step of the learned trial Judge.
I must say that this is a most unfair stricture on the Judge It is most unkind too. I do not think it is the desire of the institution of the administration of justice for counsel to criticize Judges just for the pleasure of it. And here, I am clearly of the view that the word inadvertence is not complimentary to a Judge’s conduct, or indeed the conduct of any human being. A Judge who is inadvertent in the performance of his duties has not done well.
While I agreed that counsel own their clients a duty to present the best standard of advocacy with a view to obtaining victory, this should not be achieved at the expense of the reputation and integrity of the Judge.
Counsel who levels any charge or wrong doing on a Judge can only do so on very clear and unequivocal evidence not on speculations or conjectures. That is what I have seen here.
What should be the situation where there is a conflict between the Judge’s Record Book and the Cause List? That is the meat of this matter. Which should an appellate court prefer? Counsel for the appellants would want this
court to prefer the Record Book. Counsel for the respondents would want this court to prefer the Cause List? In the absence of any other supporting or detracting evidence the more sensible choice is the entry in the Judges
Record Book. Although learned counsel for the respondents submitted that the Cause List is part of the record of the court, I am not prepared to give it equal status with the Record Book of the Judge., It is my view that the Record Book of the Judge has more probative value than the Cause List because of the following reasons:
(a) The Record Book bears the handwriting of the Judge, who is the master of not only the Book but also the entire proceedings.
(b) It is the major, if not the only document, for the appeal decision and the entire appellate system
(c) The Cause List is extracted from the Record Book. by this I mean the information in the cause list is obtained from the Record Book.
(d) The Cause List is prepared by staff of the Court’s Registry without supervision on the part of the Judge.
Learned counsel for the respondents, as indicated above, submitted that the Record of the lower court is rebut table. He cited section 114(1) of the Evidence Act. I agreed with him but not without a question. If the Record of the court is rebuttable, is a Cause List irrebuttable? I think I can still ask a second question, if by the submission of learned counsel, a Cause List is part of the record (a submission which I think is correct) where lies the cleavage he struggled to make between the two?.
Learned counsel for the respondents argued with all his advocatory skills that the appellants had notice of the 22nd April, 1994 hearing date. With respect, beyond his very interesting submissions, I do not see any evidence
of notice. And here, there should be two major sources by way of evidence. The first is the Record Book, and this will be by way of showing that either the appellants were present in court or were represented by counsel on
the 26th day of January, 1994, when the matter was purportedly claimed by Exhibit A to be adjourned to the 22nd day of April, 1994. The second is a Hearing Notice. Another source could be information passed to either the appellants or their counsel on the 22nd April, 1994 so called hearing date by the respondents or their counsel. In this third source the informant must swear an affidavit which is either not contradicted or if contradicted, evidence tilts in favour of due notice.
I have reached for evidence on notice and I cannot see any. All that learned counsel for the respondents relied upon were mere speculations. Some of the speculations are (a) failure on the part of Senator Anah, the first counsel of the appellants to appeal on the issue; (b) failure on the part of the appellants to appear in court on 27th April, 1994; (c) absence of evidence of how the appellant became aware that the motion was taken on the 22nd day of April, 1994. Certainly, a court of law can never take the above seriously on a very serious issue of denying a party his constitutional right to be heard. In my humble view, an issue of fair hearing raised by a party can only be drowned if there is evidence that the party raising the issue was responsible for his not being heard. And there are a number of instance or circumstance.
The above do not so qualify.
Learned counsel for the respondents, cited Udemah v Nigerian Coal Corporation (supra) where Uwaifo, JCA said inter alia at page 490:
“To rely on the rule of natural justice of audi alteram partem to support a cause of action, plaintiff must show that he is entitled to a hearing in the particular circumstances; that he was denied that hearing or opportunity to be head; or that the hearing he was given was unfair and therefore no hearing at all”.
Learned counsel for the appellants, in her reply, submitted that the requirements or ingredients for a reliance on the breach of the natural justice rule of audi alteram partem in the case, are fully present in the instant appeal, I entirely agree with her. There are two limbs in Udemah, It is the first limb which is applicable to this appeal and it is that the appellants who were entitled to a hearing were denied that hearing.
A trial Judge and indeed an appellate Judge must keep to the date or dates fixed for hearing of matters and cannot depart from such date or dates unless with the consent of the parties. While a Judge has the power to re order a
date earlier fixed for hearing a matter with the consent of the parties, he has no power to suo motu hear a matter on a date not earlier agreed upon by the parties. Where a Judge has cause to shift the date of hearing a matter,
either forward or back ward. He must record the reason or reasons for the shift. Of course, he must do so with the consent of the parties.
In the instant case the motion was heard on the 22nd day of April, 1994 without the appellants because they did not know that it was adjourned to that day. Therefore the appellants were denied a hearing. Accordingly, the so called hearing on the 22nd day of April, 1994 which gave rise to the 25th May, 1994 Ruling is a nullity. Since the so called hearing is a nullity, the ruling which was based on it is also a nullity. It is hereby set aside.
Normally, I should stop here but it is in the interest of a possible appeal that the Supreme Court knows my views on the other issues raised. And I will present them here very briefly. The first is that the learned trial Judge gave an order of interlocutory injunction on a completed act. The learned trial Judge said at page 134 of the record:
“It is beyond question that at the time the defendants were concluding their act on the 27th day of June, 1992 they had already been served with the motion. So the answer to the question, when the act was concluded, must be that it was concluded after the defendants had been served with the motion”.
This is a specific finding of fact, which I have no reason to reject despite the submissions of learned counsel at pages 4 and 5 of the appellants Reply Brief. A party has no legal right to anticipate the adverse consequences of a court process and embark or self help to frustrate such consequences to his advantage. In my humble view, paragraph 10 of the further affidavit of the respondents is a question of fact which the learned trial Judge was
perfectly entitled to rely upon in the absence of a counter affidavit specifically joining issues in respect of the deposition. And here, I am prepared to hold that paragraph 3 of the counter affidavit joined issues with the deposition in paragraph 10 of the further affidavit.
The learned trial Judge was not happy with the conduct of the appellants. He said at page 139 of the Record.
“In the circumstances of this application if there is any occasion in which the court should re-assert its dignity and authority, this is it, The defendants who were served with a motion seeking to restrain them from doing an act, had pre empted the order of the court by going ahead to do the act”
And so he exercised his disciplinary jurisdiction, I think the trial Judge should have right in exercising the jurisdiction if he gave an opportunity to the appellants to state their case.
The second issue is that the learned trial Judge gave orders which are wider in scope than the relief’s specifically prayed for in both the motion and the substantive claim. In the exercise by the court of its disciplinary jurisdiction arising from discordance to carry out orders, the court is entitled to restructure the order sought by the applicant to fit or reflect the disciplinary order of the court. Such a restructured order cannot technically be said to be one which is not sought by the applicant, because at the time the order was sought, the act of disobedience was not committed, and so could not have been the basis for a motion. Relating the above to the present situation is that although prayer (a) in the motion anticipated the holding of the 27th June, 1992 meeting, the order made by the learned trial Judge was that the meeting which was already held had no effect whatsoever.
By the order, the learned trial Judge exercised his disciplinary jurisdiction. I have carefully examined the totality of the orders made and I do not agree with the submission of learned counsel of the appellants.
In the light of my conclusions on the first issue raised by the appellant, this appeal succeeds, The ruling of 25th May, 1994 is hereby set aside as the appellants were not heard on the motion which led to the Ruling. I award N1,000.00 costs in favour of the appellants.
Achike and Ubaezonu JJCA both concurred with the lead judgement
{Nigerian Case referred to}
Udemah v Nigerian Coal Corporation (1991) 3 NWLR (pt 180) 477
{Counsel}
