3PLR – LAWAL MOHAMMED V. PARTRICK O. NWOBODO

Published by Law Nigeria Admin at November 30, 2018

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR

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LAWAL MOHAMMED

PARTRICK O. NWOBODO

IN THE COURT OF APPEAL

JOS JUDICIAL DIVISION

10TH JULY 2000

CA/J/68/98

3PLR/2000/159 (CA)

OTHER CITATIONS

[2000] 12 WRN 138

BEFORE THEIR LORDSHIPS

JOSEPH JEREMIAH UMOREN, JCA

CHRISTOPHER MITCHELL CHUKWUMA-ENEH, JCA

ISA ABUBAKAR MANGAJI, JCA

BETWEEN

LAWAL MOHAMMED

AND

PARTICK O. NWOBODO

REPRESENTATION

D. Dodo ESQ. (with him J. Y. Pam) – for Appellant

S.P. Nadro ESQ. – for Respondent

MAIN ISSUES

PRACTICE AND PROCEDURE – APPEAL – Preliminary objections on appeal – failure to give notice

PRACTICE AND PROCEDURE – COURT –proceedings in chambers – whether violates section 33 of the Constitution of the Federal Republic of Nigeria, 1979.

MAIN JUDGEMENT

ISA ABUBAKAR MANGAJI, J.C.A.( delivering the leading judgment)

This is an appeal against the Judgment of Abba J. sitting in the High Court of Adamawa State, Yola Judicial Division in suit No. ADSY/38/97 in which he dismissed the Appellant’s claims and granted the Respondent’s claims in terms of his Counter Claim. Dissatisfied with the said Judgment dated 7th November, 1997, the Appellant appealed against the whole decision.

On 26th November, 1997 Appellant filed a notice and grounds of appeal containing three grounds of appeal. Much latter on 16/3/98 the Appellant filed a motion on notice seeking for the leave of this Court to file one additional ground of appeal. This Court entertained the motion and granted the prayer thus the appeal stood filed and the Judgment challenged on four grounds of appeal.

Now to the facts giving rise to the action instituted by the Appellant. By a writ of summons dated 3/7/97, the Appellant as Plaintiff claimed against the Respondent as Defendant before the Court below the following reliefs:- 1. “A perpetual injunction restraining the Defendant either by himself or through any one purporting to act on his Authority from committing further acts of trespass on the Plaintiff’s land.

The sum of N100,000.00 as general damages for the Defendant’s willful act of trespass.

The sum of N80,000.00 as Special Damages for the destruction of structures erected on the land.

Cost this action.”

It appears from the record that after pleadings had been ordered, they were accordingly filed and exchanged. From the Judgment of the learned trial Judge where both pleadings were reproduced the plaintiff’s claims and the reliefs sought were amplified as hereinafter reproduced.

“THE PLAINTIFF avers that sometime in April, 1997, the defendant acting by himself and aided by his Agents/Servants wrongfully entered into the percel of land held and or owned by the plaintiff without his consent and destroyed all the structures and the foundation on the land.

PARTICULARS OF SPECIAL DAMAGES

(i) FENCE – N28,000.00

(ii) SAND – N15,000.00

(iii) CEMENT N25,000.00

(iv) LABOUR N10,000.00

(v) GRAVELS N12,000.00

WHEREOF THE Plaintiff’s claims is for the following reliefs:-

(a) A perpetual injunction restraining the Defendant either by himself or through any one purporting to act on his authority from committing further acts of trespass on the plaintiff’s land.

(b) The sum of N100,000.00 (ONE HUNDRED THOUSAND NAIRA) as general damages for the defendant’s willful act of trespass.

(d) Cost of this action.” I am cautious in referring to the pleadings as contained in the Judgment of the Court below because apart from the pleadings contained in the said judgment the pleadings upon which the suit was fought before the Court below are nowhere contained in the record of appeal. But since the learned trial Judge took the pains to reproduce the pleadings verbatim ad literatim I feel cautiously optimistic to deal with this appeal as though pleadings were incorporated in the record of appeal in order to obviate the duty of calling the Appellant to update the record as a rhapsody designed to ensure the disposal of this appeal in good time.

I should however sound a note of warning. Every material fact, document or evidence relating to a trial before the trial court in respect of which an appeal has been lodged should, as a matter of necessity, be transmitted to the Appellate Court. It is not a matter of choice that the Appellant should choose and pick what he feels he needed to prosecute his appeal. It is a matter of exigency that whatever is material should be transmitted or as it were included in the record of appeal irrespective of the effect it might have on the Appellant’s appeal. And it does not matter whether the learned trial Judge took pains to reproduce word word in his judgment that document which ought to be included in the record of appeal. Be that as it may the Defendant filed his statement of defence which contained a counter claim. The counter claim interestingly enough contained similar reliefs as those claimed by the Plaintiff. The Counter-claim is couched thus:-

COUNTER-CLAIM

“The defendant repeats paragraphs 1- 12 of the Statement of Defence and adopt same.

The Defendant avers that he suffers damages and loss when the Plaintiff illegally unlawfully and without any Court process knowing fully well that the defendant was already in possession occupation of the land by showing position acts of improvement even before the plaintiff’s entry, the plaintiff proceeded level the deposits of sands, laterite, gravels, 1,600 bricks and concretes on the land and dug a foundation by self help (forceful entry on the land).

The defendant claim special damages for destroying/leveling the following:

PARTICULARS OF SPECIAL DAMAGES

(a) 1,600 bricks (block) 6 inches at N15.00 each N24,000.00

(b) 3 trips of concrete stone at N3,500 each N10,500.00

(d) 10 trips of sand at N1,500.00 each trip N15,000.00

(e) 5 trips of laterite at N1,250.00 each trip N06,230.00

TOTAL = N67,750.00

WHEREFORE the defendant claims for the following reliefs

(a) Perpetual injunction restraining the Plaintiff himself, agents, servants, privies or any person/authority setting plaintiff from committing trespass and further acts of TRESPASS ON THE DEFENDANT LAND.

(b) Special damages against the plaintiff in the sum of N67,750.00

(d) Cost of this litigation.”

It was based on the above state of pleadings that the suit was fought in the Court below at the end of which Judgment was delivered in which the Plaintiff’s claims were dismissed in their entirety and the Defendant’s counter claim granted in whole with only the quantum of the general damages claimed reduced to N30,000.00 (thirty thousand Naira). It is against that Judgment that the Plaintiff filed this appeal. I shall henceforth refer to the Plaintiff as “Appellant” and Defendant as “Respondent” accordingly.

Learned Counsel on both sides filed and exchanged briefs of argument although until each sought for and was granted leave to so file the brief out of time. In his brief, learned Counsel for the Appellant identified two issues as arising for determination from the four grounds of appeal. These issues are:

“1. Whether the proceedings of the trial High Court are a nullity for flagrant violation of section 33 of the 1979 Constitution as amended.

Whether the trial Court was right in granting the Respondent’s Counter Claims.”

On his part learned Counsel for the Respondent formulated two issues for determination after which he raised preliminary objection to the grounds of appeal as filed under the heading, “Respondent’s concise Argument”. I shall consider the objection anon. The two issues he formulated are the following:-

“1. Whether or not the entire proceedings of the trial High Court in respect of the Appellant’s claim and of the Respondent’s Counter Claim were held in Chambers and therefore a nullity for violating the provisions of section 33 of the 1979 Constitution as amended.

Whether or not the trial Court was wrong in granting the reliefs sought by the Respondent vide Counter Claim.”

From whatever angle one looks at these two sets of issues for determination, they are in all respects similar. But because the issues identified by learned Counsel for the Respondent are more elaborate, I shall adopt them in the determination of this appeal. Let me however, from the onset consider the preliminary objection raised by learned Counsel for the Respondent in pages 4 and 5 of his brief of argument. The tripod objections on the competence of the four grounds of appeal can be found in paragraphs 3 to 5 of page 4 of the brief. In the words of learned counsel:-

“With leave of Court and to keep this objection within reasonable limits, grounds 2 and 3 of the original Grounds of Appeal (Can not be error in law as the particulars thereto allege that the trial judge failed to consider the reliefs sought in the statement of claim). It is at best a misdirection but not one of error in law.

It is respectfully submitted and withal (sic) due respect to the Appellant’s particulars of Grounds 3 of the Original Grounds of Appeal is premised on arguments. Particulars of Grounds of Appeal are not supposed to contain arguments or submissions as the Grounds of Appeal appears to be.

Further still, we submit that Grounds 1, 2, 3, of the Original Grounds of Appeal and that of the additional Grounds of Appeal are not competent Grounds of Appeal. A Ground of Appeal alleging misdirection and error of law must quote the passage where the error or misdirection occurred.”

There is no doubt that a Respondent who desires to raise preliminary objection to the hearing of an appeal has the right to do so. Such a right is provided for by 03 r. 15 of the Court of Appeal Rules, 1981 as variously amended. Sub rule 1, rule 15 provides unequivocally thus:-

“A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with seven copies thereof with the Registrar within the same time.”

By the above rule, a respondent intending to rely upon a preliminary objection must give notice to that effect three clear days before the appeal comes up for hearing. Admittedly by the practice which has become accepted in this Court, incorporating an objection in brief of argument is regarded as good notice required under sub-rule 1 of rule 15 of order 3 Agbaka v. Amadi (1998) 11 NWLR (Pt. 572). However, such an objection must be premised on formal filing of the notice of objection, “together with seven copies thereof with the Registrar within the same time.” Thus whereas argument on a preliminary objection relied upon against the hearing of an appeal can legally be incorporated in the brief of argument, notice of the grounds of the objection shall have been given to the Appellant and copies of it required to be filed made available as mandated by the Rules of Court. Which means that the argument on the preliminary objection must not be at large. It must be premised on some “notice of intention to reply upon preliminary objection” notice of which the Appellant and the Court should have. It will be putting the Cart before the horse for the Respondent to raise objection to the hearing of the appeal in the brief of argument without first filing notice of intention to do so as enjoined by 03 r.15(1) of the Court of Appeal rules, 1981. Rules of Court, it must be stressed, are meant to be obeyed. If there is non compliance with the Rules as in this case, it must be explained away if not, unless it is of a minimal kind, no indulgence of the Court can be granted. See Kalu v. Odili (1992) 5 NWLR (Pt. 240) 150; Williams v. Hope Rising Voluntary Funds Society (1982) 1 ALL NLR (Pt. 1) 5. Evidently there is clear non-compliance by the Respondent in relying upon a preliminary objection as he did concealed as it were, in some paragraphs that were intended to advance Respondent’s argument in the main appeal. There appears also to be no justification for doing so just as there is no explanation on why such a procedure was employed. In accordance with 03R15(3) of the Court of Appeal Rules 1981 as amended therefore, I refuse to entertain the objection moreso as the objection is even on its merit ill-founded.

Let me say why it is ill-founded: The first ground of objection is that rather than tagging grounds 2 and 3 of the grounds of appeal “Misdirection”, learned Counsel referred to them as “error in law.” I should say that a ground of appeal is not a ground of law simply because the Appellant calls it so. It is the content of the ground that will indicate what it really is. See Ogidi v. Egba (1999) 10 NWLR (Pt. 621) 42 at 53; Maigoro v. Garba (1999) 10 NWLR (Pt. 624) 555 at 573 and Jov v. Dom (1999) 9 NWLR (Pt. 620) 538 at 547. That learned Counsel referred to the finding of a trial Court in a final decision as “an error of law” in his ground of appeal when it is indeed a “misdirection” does not ipso facto render the ground incompetent. It is a valid ground of appeal and should be considered depending on what it legally is.

The second ground of objection alleged that particulars of ground 3 of the grounds of appeal are argumentative. The particulars under attack are as follows:-

“PARTICULARS OF ERROR

(a) There was no legal basis for the grant of N67,750.00 special damages which was not strictly proved in law.

(b) There was no basis for the award of N30,000.00 general damages on the facts and law.

There is no doubt that particulars of ground of appeal should not be argumentative or a submission or narration sought to be proferred at the hearing of the appeal. If they are, they are rendered incompetent thereby rendering the ground incompetent. See Soetan v. Ogunwo (1975) 6 SC 67; Ekpe v. Fagbemi (1998) 1 All NLR 107; Gamboruma v. Borno (1997) 3 NWLR (Pt. 495) 530; Adodo v. Ismaila (1998) 11 NWLR (Pt. 573) 214. But the difference between particulars of ground of appeal that are argumentative or a narration or as the case may be, a submission is very fine indeed. Given the circumstances of this appeal, the above particulars can be anything but argumentative. If there would be any valid attack on them at all, it will be that they are too curt to be detained enough to pass as germane particulars in support of a ground of appeal.

The third and last ground of objection is that a ground of appeal which alleges misdirection or error of law must quote the passage where the error or misdirection occurred. I think what should agitate learned Counsel’s mind when drafting grounds of appeal is to couch them in clear, accurate and elegant manner such that the complaints he desires to raise are brought out without equivocation. See Akpan & Anor. v. Uyo & Anor. (1986) 3 NWLR (Pt. 26) 63; Ambire & Ors. v. Womiloju & Ors. (1993) 5 NWLR (Pt. 295) 623. After all the purpose of a ground of appeal is to give notice to the Respondent of the exact complaint the Appellant has against the decision. See Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622; Anie v. Chief Ugagbe (1995) 6 NWLR (Pt. 402) 425. What really matters is not perse in quoting, the passage in the finding of the learned trial Judge than in directing energy in giving full and substantial particulars of the complaint raised against the finding such that it will be clear what aspect of the judgment is being brought to question. It is my view that failure to quote the finding being questioned does not render a ground of appeal incompetent by reason only of the failure to so quote the passage. In Okeke Anadi v. Okeke Okoli (1977) 7 SC 57 the decision of the Supreme Court laid it down as a rule citing with approval Pfeiffer v. The Midland Railway Company (1887) 18 QBD 243 and Murfelt v. Smith (1887) 12 PD 116 that where an “error in law” or “misdirection” is alleged against a finding in a Judgment particulars of the “error in law” or “misdirection” must be specified to satisfy the provisions of Or. ii rule 2(2) of the Supreme Court Rules which is impari materia with the provisions of 03 rule 2(2) of the Court of Appeal Rules, 1981 as amended. Yet in Lauwers Import-Export v. Josebson Ind. Ltd. (1988) 3 NWLR (Pt. 83) 429 where, of the seven grounds of appeal being attacked on the ground of incompetence, only one contained a verbatim, reproduction of a passage in the judgment of the Court of Appeal in respect of which preliminary objection was raised, the Supreme Court dwelt extensively on the propriety of incorporating particulars of error or misdirection in the main body of the grounds of appeal rather than particularizing them under separate heading. It appeared clear that failure to cull out verbatim the portion of the judgment being questioned is not a prerequisite. When therefore in Atuyeye v. Ashamu (1987) 1 NWLR (Pt. 49) 267 the Supreme Court reemphasized the mandatory nature of supplying particulars and nature of error where a ground of appeal alleges “error in law”, the court only restated the proper interpretation of Or.3 rule 2(2) of the Court of Appeal Rules. In that case the ground of appeal in contention was couched thus:-

“The Learned trial judge erred in law when he failed to give proper appraisal to the evidence adduced by the Defendant and relied heavily on the evidence adduced by the Plaintiffs in giving his decision.” The Learned Counsel in that case found nothing wrong in the failure of Learned Counsel for the Respondent to quote ipsissima verba the passage in the judgment being complained of as indeed the Supreme Court which did not find such a failure a material flow. By way of emphasis Or.3 rule 2(2) of the Court of Appeal Rules, 1981 as amended reads as follows:-

“If the grounds of appeal allege misdirection or error in law, the particulars and the nature of misdirection, or error shall be clearly stated.”

Definitely the above rule which is clear and couched in very simple language does not admit as a mandatory step that the passage of the judgment being attacked must be quoted verbatim. So when learned Counsel for Respondent put heavy reliance on the decision of this Court in Rinco Construction Co. Ltd. v. Veepee Ind. Ltd. (1992) 5 NWLR (Pt. 240) 248 and Nwako v. Governor, Rivers State (1989) 2 NWLR (pt. 104) 470 at 479 as authorities sanctioning quoting verbatim the portion of the judgment being appealed against as a prerequisite for the validity of a ground of appeal which alleges error of law or misdirection, he appears to have read the cases out of context. By quoting the passage in the Judgment being appealed against this Court obviously meant to emphasise the need for the “error of law” or the “misdirection” alleged in the ground of appeal to attack a definite finding of the Court such that it will not be in doubt what portion of it is called to question. And with the nature of the error or misdirection, coupled with the full and substantial particulars supplied, a complete picture of the aspect of the Judgment in issue becomes clear beyond doubt. For the above reasons, I am clearly of the view that learned Counsel’s objection is, to be most modest, ill founded.

I am indeed baffled that the Respondent who took exception to the issues for determination as formulated by learned Counsel for Appellant equally identified two similar issues for determination as arising from them.

Let me consider yet another objection raised by Learned Counsel for Respondent. I should perhaps reproduce it. It reads:-

“As stated earlier, there are 3 Original Grounds of Appeal filed and a single Additional Ground of Appeal. We seriously object that the issues for determination numbering 2 are based on any of the Ground of appeal filed in this appeal as required by law with respect we submit that issues 1 and 2 of the Appellant’s Brief for determination are not tied to any of the 4 Grounds of Appeal filed in this appeal. We therefore submit that even with best intentions the Court can not ascribe any of the 2 issues to any particular Ground of Appeal. See Enoch Anukwu & Others v. Ohia & Others (1996) 5 NWLR (Pt. 40), 150 at 155.

“It is the duty of Counsel when setting issues in it brief to relate the issues to grounds of appeal so that if an appeal is allowed it will be easy to know on which grounds the appeal is allowed.” We therefore urge the court to strike out the Appellants brief. The issues as framed are arguments not tied to any particular ground of appeal and should be struck out.

The grouse of the Respondent’s Counsel has to do with the failure of the Appellant’s Counsel to relate the issues he formulated to the grounds of appeal. I agree that it is bad practice for Counsel to identify issues for determination without relating them to the grounds of appeal. Because issues formulated for determination must relate to and arise from the grounds of appeal filed as directed in a plethora of decided cases right from the case of Adesanya v. President of Nig. (1981) 2 NCLR 358 to Momah v. Vab Petroleum Incorporated (2000) 4 NWLR (Pt. 654) 534, the duty to relate the issues to the grounds of appeal became imperative. It is only when the issues are related to the grounds of appeal that it will be easy to know which grounds of appeal are allowed. See Anukwu & Ors. v. Ohia & Ors. (1986) 5 NWLR (Pt. 40) 150 at 155. that also will easily reveal which grounds of appeal are abandoned not having identified any issue for determination as arising from them since any ground of appeal in respect of which no issue is identified is deemed abandoned – see Ojegbe v. Omatsone (1999) 6 NWLR (Pt. 608) 591; Bandan v. The State (1999) 1 NWLR (Pt. 320) 350; Adigun v. Ayinde (1993) 8 NWLR (Pt. 232) 516.

But the very complaint learned Counsel for the Respondent raised against the issues identified by learned Counsel for Appellant has beset the two issues he himself identified. In formulating the two issues for determination learned Counsel failed to relate them to the grounds of appeal. Be that as it may, I fail to see any axe to grind in this complaint given the grounds of appeal in this appeal. There are only two issues for determination identified by learned Counsel. The first issue identified by each learned Counsel raised the question whether the proceedings of the Court below are a nullity for failure to observe the provisions of section 33 of the 1979 Constitution. The only ground of appeal which complains about failure to so observe the provisions of section 33 of the 1979 Constitution is the additional ground of appeal which learned Counsel for the Respondent said should be regarded as the fourth ground of appeal. The second issue which questions the granting of the reliefs contained in the Counter Claim obviously relates to the three original grounds of appeal which took exception to the findings of the learned trial Judge as they relate to the Counter claim. Following from the above, it will be clear that the difficulty in knowing which grounds of appeal are allowed after full consideration of the issue will be a non-issue. I find no merit in this objection. It is therefore dismissed.

On the first issue for determination learned Counsel for the Appellant in his brief of argument pointed out that the proceedings of the Court below at pages 4 and 26 did show unmistakably that the sittings of the Court were convened in Chambers. He submitted that it did violence to section 33 of the 1979 Constitution for the learned trial Judge to conduct the trial of the suit in chambers. He reasoned that sitting in Chambers cannot by any shred of imagination be said to be a sitting in open Court since the admission of members of the Public is restricted only to those permitted by the learned trial Judge. Learned Counsel relied on Nigeria – Arab Bank Ltd. v. Barri Eng. Nig. Ltd. (1995) 9 SCNJ 147 at 148 for so submitting. He submitted further that the learned trial Judge had breached s-33(3) of the 1979 Constitution when he sat on those two occasions the resultant effect of which is the complete nullification of the proceedings in the suit. He urged that issue No. 1 be resolved in the affirmative.

In his argument on the 1st issue as contained in his brief of argument learned Counsel for the Respondent submitted that in as much as the proceedings in respect of the Counter-claim were conducted in open court it cannot be seriously contended that section 33 of the 1979 Constitution has been breached. He argued that the cases cited by learned Counsel for the Appellant are not applicable to the appeal at hand regard being had to the fact that a counter-claim is a separate action and that no part of the proceedings in the Counter-claim were conducted in chambers. He urged that the issues be answered in the negative more so that the Counter-Claim was one that was not contested before the Court below.

From the record of appeal the appellant called 4 witnesses before the Court below. When the suit was set down for hearing on 20/8/97 and the evidence of the Plaintiff taken the Court sat in chambers wherein the Plaintiff was examined, Cross-examined and re-examined. It was on that day that the most vital evidence for the Plaintiff was taken in chambers. Of course learned Counsel on both sides were present as well as the parties – see pages 4 to 7 of the record of appeal. It is further not in doubt that on 28/10/97 the Court again sat in chambers as reflected at page 26 of the record even though on that day learned Counsel for the Defendant only intimated the Court of his having normally closed his case and the Court thus adjourned the suit to the next day to enable Counsel, who were not ready to address the Court, to do so. These two sittings of the Court amongst other sittings in the course of the trial of the suit were conducted not in open Court but in the Chambers of the learned trial Judge. These Learned Counsel for the Appellant said were sufficient to vitiate the whole of the proceedings in the suit including the judgment. Let me then examine, in the light of the objection taken to the validity of the whole trial, what the law is having regard to the provision of S-33(3) of the 1979 Constitution. Section 33(3) of the 1979 Constitution provides as follows:-

“The proceedings of a Court or the proceedings of any tribunal relating to the matters mentioned in subsection (1) of his section (including the announcement of the decisions of the Court or tribunal) shall be held in public.”

Sub-section (13) of Section 33 of the 1979 Constitution on the other hand provides

that:-

“The proceedings of a Court or the proceedings of any tribunal relating to the matters mentioned in subsections (1) and (4) of this section (including the announcement of decisions of the Court or tribunal) shall be held in public provided that –

“(a) a Court or such a tribunal may exclude from its proceedings persons other than parties thereto their or legal practitioners in the interest of defence, public safety, public order, public morality, the welfare persons who have not attained the age of 18 years, the protection of the private lives of the parties or to such extent as may consider necessary by reason of special circumstances in which publicity would be contrary to the interest of justices;

(b) if in any proceedings before a court or such a tribunal, a Minister of the government of the Federation or a Commissioner of the Government of a State satisfies the Court or tribunal that it would not be in the public interest for any matter to be publicly disclosed the court or tribunal shall make arrangements for evidence relating to that matter to be heard in private and shall take such other action as may be necessary or expedient to prevent the disclosure of the matter.”

The only simple point worthy of note here is that whereas sub-section (1) of section 33 aforesaid relates to the determination of civil rights and obligations, sub-section (4) relates to the preferring of charges in criminal offences and the right Constitutionally guaranteed as accused person to fair hearing. Now what then is it that has been prescribed by section 33(3) and (13) of the Constitution? The Supreme Court has had occasions to consider the import of this Constitutional provision. The decision of the Supreme Court in Oviasu v. Oviasu & anor. (1973). It is a clear authority that the proceedings of a court or tribunal shall be in open Court as enshrined in S. 22(1) and (3) of the Constitution of the Federation of Nigeria, 1963 which is ipsissima verba with S. 33(3) and (13) of the 1979 Constitution except for the proviso to S. 22 of the said 1963 Constitution which has been omitted. The observation of Sowemimo JSC (as he then was) at pages 232 to 324 of the report requires full reproduction in order to underscore the mandatory need for conducting Court’s proceedings in open Court and as emphasis that the said provision cannot be compromised. Said he:-

“The hearing of this matrimonial case took place in the judge’s Chambers. Neither the counsel nor the parties requested for the hearing of the divorce proceedings in camera. A Judge’s Chambers is not a court hall to which the public will normally have any right of access. The petition and answer did not contain such matters, which by law, ought to be heard in camera in a court room. But surely the law is no respecter of persons. Divorce proceedings, no doubt, presents a veritable ground for scandal peddlers. There are, however, legal processes by which such situation are controlled and the persons concerned protected. It is of the essence of justice that it should not only be done but that it should be seen to be actually done. Any act of secrecy, however desirable it might seem, detract from the aura of impartiality, independence, publicity and unqualified respect which enshrouds justice given without fear or favour. Its acceptance by the public at large, and the confidence it demands depend on these aura being strictly adhered to. These attributes have been considered so fundamental that they are enshrined in our constitution.”

The above state of the law was restated by the Supreme Court in Nigeria Arab Bank Ltd. v. Barri Engineering Nig. Ltd. (1995) 8 NWLR (Pt. 413) 257. Observance of S-33(3)&(13) of the 1979 Constitution is said to be mandatory in relation to the holding of proceedings of a Court in Public. That case, without doubt found the conclusion of Obaseki JSC in Oyeyipo v. Oyinloye (1987) 1 NWLR (Pt. 50) 356 at 377 a clear obiter dictum. His Lordship concluded thus:-

“When the court sits in Chambers, all that it means is that the judges of the court are transacting the business of the court in Chambers instead of open court (see Harmount v. Foster (1881) 8 QBD 82, 84). It does not mean that the court is not sitting in public. A court can sit in open court and yet decide to exclude members of the public other than the parties or their representatives from the hearing in exercise of its statutory powers. See proviso to section 3(13) of the Constitution of the Federal Republic of Nigeria 1979.

A Judge may sit in Chambers without excluding members of the public. It is therefore not unconstitutional to sit in Chambers.

The objection of the appellants/applicants that it is unconstitutional for this court to sit in Chamber to consider the application is without substance.”

That passage in the judgment of Obaseki JSC obviously raised serious concern as to what the position of the Constitution should be. But the decision in the Nigeria – Arab Bank (supra) has put to rest any doubt that might have been created and settled it beyond doubt that no proceedings of a Court shall be conducted otherwise than in an open Court except those clearly provided for under relevant Rules of Court. It is worthy of note to realise that the Oyeyipo v. Oyinloye case cited supra rests on a completely different pedestal. In that case the Supreme Court sitting in Chambers entertained an application praying for the dismissal of the appeal lodged before it for want to prosecution and accordingly granted it. The order for dismissal was then drawn up, sealed and signed. The appellant felt aggrieved and filed an application to set aside the decision as being contrary to section 33 subsections (1) and (3) of the 1979 Constitution on the ground inter alia that the Appellant’s appeal was dismissed in Chambers rather than in open Court as provided by the Constitution. The application was unanimously dismissed on the ground inter alia that the Supreme Court derives its power under the Supreme Court Rules, 1985 being a valid legislation made by virtue of section 216 of the 1979 Constitution. Sitting as the Supreme Court did in Chambers therefore was held not to be inconsistent with S.33(1) and (13) of the Constitution. That authority in the circumstances cannot be a veritable aid for the view held by many a Counsel that sitting in Chambers is not unconstitutional if members of the public are not excluded from having ingress and egress.

The case of Chima v. Ude (1996) 7 NWLR (Pt. 461) 379 is but for now the last in the stream of judicial decisions of the Supreme Court which decided on the validity of the Supreme Court Rules, 1985 (as amended) in relation to S.33 of the 1979 Constitution. In the majority decision of the Court (Kutigi JSC dissenting only the aspect of the appeal dealing with failure to serve the Appellant with hearing notice of an application to have his suit dismissed for want of prosecution under Or.3 rule 9(1) of the Supreme Court Rules 1985 (as amended) the Supreme Court followed its earlier decisions in Oyeyipo v. Oyinloye (supra) and N.A.B. v. Barri (Supra). The definite stand of the Supreme Court arrived at in the Oviasu case through the Oyeyipo case to the N.A.B. case did not feature prominently because the issues involved in that case are not directly on the question whether conducting proceedings in Chambers by superior courts violate section 33(1) and (13) of the 1979 Constitution. But from the stream of Judicial authorities referred to above, I have come to the inescapable conclusion th at where proceedings of a Court of law are conducted in Chambers, they are rendered null and void. It does not matter at all whether parties and/or counsel consented to it or that they raised no objection because parties and Counsel cannot, on an understanding reached confer on the Court Jurisdiction where it lacks one. Indeed it does not even change the situation that no miscarriage of Justice is occasioned by the failure of the Court to sit in open Court i.e. in public.

Having regard to the above settled state of the law, I am left in no doubt that the sitting of the Court below in Chambers on 28/8/97 and 28/10/97 during which proceedings of the Court were conducted rendered the whole proceedings in the suit null and void. But the argument of learned Counsel for the Respondent appears to have taken a simplistic view of the vice that is said to have afflicted the proceedings before the Court below. The stand of learned Counsel is that the proceedings which resulted in the success of the Counter-claim were all conducted in open Court and within the full glare of the public. It is in view that that being so, the vice that afflicted the main suit when the Court below sat in Chambers on two occasions, will by no means visit the Counter Claim whose proceedings were conducted in public.

There is no doubt that a Counter Claim is a distinct and separate action from the main suit see Ogbonna v. A.G. Imo State and Other (1992) 7 LRCN 221 at 267. It is wholly independent of the main suit although for convenience of procedure are combined in one action. See Registered Trustees of Anglican Diocese of Ibadan v. Managing Proprietor Liberty Secondary Commercial Academy (1971) 1 U.I.L.R. 46.One thing that cannot be lost sight of however is that the counter claim must be related to the claim in the original action. See Oyegbola v. Esso West Africa Incorp. (1966) 1 All NLR 170; Okonkwo v. Co-op. and Commerce Bank (Nig.) Plc. (1997) 6 NWLR (Pt. 507) 48. That a counter-claim is a cross action in the action in which it is filed is beyond doubt. See Dabup v. Kolo (1993) 9 NWLR (Pt. 317) 254. Both the original action and the counter-claim are tried under the title of one suit and the vice that afflicts the original suit, so long as it has to do with fundamental Constitutional requirement must of necessity also visit the Counter-Claim. It must be borne in mind that one Judgment covers both the original action and the Counter-claim such that the vice which afflicted the former cannot be severed from the latter. There is appears to be no practical way of separating the proceedings in the Counter-claim and its resultant judgment from the main body of the proceedings. It is for the above reasons that I hold the view that the whole proceedings in the suit including the judgment are rendered null and void for the obvious reasons that part of the proceedings in the suit were conducted in the Chambers of the learned trial Judge in violation of section 33(i) and (13) of the 1979 Constitution. Let me be quick to add parenthetically that I am not unaware of the decision of this Court in Joshua v. State cited supra. In the later case which was an appeal on a conviction for culpabable homicide punishable with death contrary to section 22(b) of the Penal Code, the trial Court sat in chambers and took the plea of the Accused persons. Thereafter, the Court rose and later reconvened in open Court where the evidence led on both sides were heard. The Complaint of the Appellants was that their plea was taken in chambers rather than in open Court. What is obvious however is that irrespective of the plea of an Accused person on a charge of culpable homicide punishable with death, the Court is bound to record a plea of not guilty for him. Thus whether in Chambers or in open Court, the plea to be recorded is the same and it is that of “not guilty”. Evidently therefore, in Joshua v. State supra no miscarriage of justice was occasioned by the mere fact that the plea of the Appellants was taken in Chambers since what the Court was bound to record was complied with and the whole of the evidence in the case was taken in open Court.

The facts of the present appeal however, present a different picture. In the suit at the Court below the Appellant called two witnesses in all before closing his case. The whole of the evidence Appellant gave, together with cross-examination and re-examination were taken in chambers. Withal there was no reason advanced why the proceedings had to be conducted in Chambers. In any case the nitty-gritty of the Appellant’s case before the Court below was heard in Chambers without any reason shown to justify the employment of such an unusual procedure. It can thus be seen that Joshua v. State (supra) stands on its own and is distinguishable from the facts and circumstances of the appeal. The first issue for determination is accordingly answered in the affirmative.

The second issue for determination is whether the Court below was wrong in granting the reliefs sought by the Respondent in his counter-claim. In a rather very short argument in his brief of argument, learned Counsel submitted as follows:-

“It will be submitted for the appellant that the defendant’s counter claims on the facts and law should not have been granted by the trial court. There is no doubt that the disputed landed property is situated within the area designated Yola Urban Area. This fact is attested to by the documentary evidence tendered by the defendant from Adamawa State Urban Planning and Development Authority namely Exhibit “C” “G”.

It will be further submitted for the appellant that a careful perusal of the printed records, should reveal that the Respondent did not prove any special damages against the appellant. There was therefore no legal basis for the outrageous sum awarded by the trial Court.”

The only argument advanced on this issue therefore is that the Respondent had failed to prove the items of special damages which he claimed.

As if to pay the Appellant in his own coin, learned Counsel for the Respondent also had a very short reply to the submission of learned Counsel for the Appellant. Said he in the Respondent’s brief of argument:-

“It is respectfully submitted with all due respect on behalf of the Respondent with regards to Ground 3 of the Appellant’s original Ground of Appeal, since no Defence/Reply to the counter claim of the Respondent was filed in court by the Appellant, it is apparent that no issues can be said to have been raised/joined on the counter-claim as to disturb the judgment granting reliefs sought in the counter claim of the Respondent.

We therefore submit that the Appellant who has no defence to the counter claim can not be heard to complain about the judgment in favour of the Respondent’s claim.”

Learned Counsel’s submission is that because the Appellant filed no reply to the Counter-claim, he cannot be heard to complain about the judgment of the court below as it affected the Counter-claim. But learned Counsel’s argument is fairly obfuscating. Rather than proffer argument based on the issue identified relating to ground 3 of the grounds of appeal, he turned his attention and argument to the ground of appeal itself. It may do well to remind learned Counsel that arguments on appeal should always be based on issues formulated and not on the grounds of appeal. If so done, the arguments should be ignored. See Order 6 rule 3 of the Court of Appeal Rules 1981 as amended. See also Onowhosa v. Odiusou (1999) 65 LRCNI. In the event I shall ignore the argument contained in paragraph one advanced by learned Counsel for Respondent as reproduced above.

Learned Counsel for the Respondent contended that the Appellant not having filed any reply to the Counter-claim of the Respondent cannot be heard to complain about the Judgment delivered in the favour of the Respondent as per his counter-claim. I should point out that the Respondent in his counter-claim sought for reliefs including one for trespass and perpetual injunction. Thus title to the land was put to issue see Okorie v. Udom (1960) 5 FSC 162 at 165; Ajani v. Ladepo (1986) 3 NWLR (Pt. 28) 276; Alh. Akinola v.Madam Lasupo (1991) 3 NWLR (Pt. 180) 508 at 515 and Fasikun II v. Oluronke II (1999) 65 LRCN 114. Clearly the Respondent sought for declaration of title to the land in issue. Since the claim in the counter-claim include a declaratory right, the Respondent still had to satisfy the court that he is entitled to the declaration sought regardless of the failure of the Appellant to file a defence. See Ogbonna v. A.G. Imo State & Ors. cited supra. The fact that the Appellant filed no reply to the counter-claim therefore is of no moment and the Respondent had the burden of proving title to the land. In the event the learned trial Judge was right by letting the Respondent lead evidence in proof of his title.

Learned Counsel for the appellant apart from being dissatisfied with the declaration of title made by the Court below in the favour of the Respondent per his Counter-claim, he was equally aggrieved by the success of the special damages claimed by the Respondent. It is the law that special damages must be proved by the party claiming them see Oshinjirin v. Elias (1970) 1 All NLR 153 1t 156; Incar (Nig.) Ltd. v. Adegboye (1985) 2 NWLR (Pt. 8) 453. The Respondent therefore was duty bound to prove the items of special damages he claimed in his Counter-claim. I must point out that the Respondent did not apply for judgment in terms of his counter-claim for the failure of the Appellant to file a reply thereto for two obvious reasons. The first that comes to mind is the fact that the Respondent claimed a declaration of title to land. He was in the circumstance under duty to lead evidence in proof of it. The other reason is that the Respondent had claimed some special damages. By law, he was required to lead evidence to prove his claims.

To start with the last point first, the Respondent itemized the particulars of the special damages he claimed so exhaustively as can be seen from the counter-claim reproduced earlier on in this judgment. The only evidence led in proof of the special damages came from the Respondent himself. His evidence (to be found at pages 21 to 22 of the record of appeal) however, is of a general nature. At page 21 he said as follow:-

“Before I got the Certificate of Occupancy exhibit f fenced 3 blocks all round in 1984 also moulded blocks of cement 6 inches. I also put sand and gravel. 10 trips of sand 3 trips of gravel…….”

The question that arises is whether the above piece of evidence is sufficient proof of the special damages claimed in the Counter-claim. I think not. The Respondent alluded to despositing 10 trips of sand and 3 trips of gravel. These by no means are sufficient proof of the averments in paragraphs 3(a) to (e) of the Counter Claim. The pertinent issue about the actual cost of the gravel and sharp sand had been left to the Court below to quess. All other items of special damages have not been touched at all. Based on the above piece of evidence, the learned trial Judge found as follow:-

“The plaintiff’s claim therefore fail and is dismissed as pleaded in paragraph 13 of statement of defence. For the same reason the afore said plaintiffs counter claim is hereby held to have been proved and is hereby granted as prayed in view/paragraph 4 of the counter claim except for paragraph 4 sub (c) general damages which is reduced to N30,000 Thirty Thousand Only. The whole of paragraph 4 by defendant is granted as I find and hold that defendant has proved the special damages claimed even though no receipt produced. Therefore defendant is granted N67,750.00k special damages against Plaintiff. The cost of this litigation in paragraph 4(d) of counter claim is subject to assessment after this judgment is read out.”

Even the learned trial Judge himself (with due respect to him) was not convinced that the special damages had been proved for which reason he conceded that no receipts were produced before the court. Although the Respondent was required to discharge the onus placed on him by minimal proof since the Appellant called no evidence at all relating to the Counter-claim, I do not believe the evidence led satisfies that standard of proof. The evidence led by the Respondent was so scanty that it did not lend itself to quantification. See NEPA v. Alli (1992) 8 NWLR (Pt. 259) 279 at 297; Osuji v. Isiocha (1989) 3 NWLR (Pt. 111) 623 at 633 and Badmus v. Abegunde (1999) 1 NWLR (Pt. 627) 493. There is no way the trial Court could have calculated the special damages claimed by the Respondent based on the evidence the Respondent led. The onus placed on the Respondent to prove the special damages he claimed required strict proof in order to entitle him to judgment. The evidence the Respondent ought to have led should have the same particularity as the items he listed in his pleading – see Imana v. Robinson (1999) 3 – 4SC 1 at 23; Kurubo v. Zach Motison Nig. Ltd. (1992) 5 NWLR (Pt. 239) 102; Obasuyi v. Business Ventures Ltd. (2000) 5 NWLR (Pt. 658) 668 at 685 – 686. I am therefore of the firm view that the learned trial Judge’s finding on the items of special damages was not supported by the evidence on record. In the circumstance this Court must interfere with the finding. See Ude v. Chimbo (1998) 12 NWLR (Pt. 577) 169 at 186 – 187; Woluchem v. Gudi (1981) 5 SC 291 at 295-296; Balogun v. Agboola (1974) 10 SC 111 at 118 – 119 and Okpiri v. Jonah (1961) 1 SC NLR 194 at 176 – 177.

As for the finding of the learned trial Judge on title and the award of general damages, I find no reason to disturb them. The finding as to title was supported by the available evidence on record and the award of general damages having been made in consequence of the declaration of title, find solid support. In the event this issue succeeds in part and as it affects the award of special damages claimed in the counter-claim which is hereby set aside.

Having regard to the answer I reached on the first issue this appeal succeeds. Because the proceedings of the learned trial Judge in this suit was partly held in Chambers and therefore ran contrary to the provisions of section 33(1) and (13) of the 1979 Constitution, the whole of the proceedings are rendered null and void. In consequence, I hereby declare the proceedings in suit No. ADSY/38/97 between Lawal Mohammed v. Patrick O. Nwodobo together with the judgment arrived at by the learned trial Judge null and void and are accordingly set aside. There shall be no costs to any of the parties.

JOSEPH JEREMIAH UMOREN, J.C.A.

I have read in draft the judgment of my learned brother, I. A. Mangaji, J.C.A. just read. I agree with his reasoning and conclusion and also declare the judgment appeal against null and void and of no effect whatsoever. I also make no order as to costs.

CHRISTOPHER MITCHELL CHUKWUMA-ENEH, J.C.A.

I have read the judgment just delivered in draft and I agree with my learned brother Mangaji, J.C.A. that the proceedings and judgment in the matter being null and void be set aside. The suit is hereby struck out. I also make no order as to costs.

Cases referred to in the judgment

Adesanya v. President of Nig. (1981) 2 NCLR 358.

Adigun v. Ayinde (1993) 8 NWLR (Pt. 313) 516.

Adodo v. Ismaila (1998) 11 NWLR (Pt. 573) 214.

Agbaka v. Amadi (1998) 11 NWLR (Pt. 572) 16

Ajani v. Ladepo (1986) 3 NWLR (Pt. 28( 276.

Alh. Akinola v. Madam Lasupo (1991) 3 NWLR (Pt. 180) 508.

Ambire & Ors. v. Womilolu & Ors. (1993) 5 NWLR (Pt. 295) 623.

Anie v. Ugagbe (1995) 6 NWLR (Pt. 402) 425.

Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622

Atuyeye v. Ashamu (1987) 1 NWLR (Pt. 49) 267.

Badmus v. Abegunde (1999) 1 NWLR (Pt. 627) 493.

Balogun v. Agboola (1974) 10 SC. 111.

Bandan v. The State (1999) 1 NWLR (Pt. 320) 350.

Dabup v. Kolo (1993) 9 NWLR (Pt. 317) 254.

Ekpan & anor. v. Uyo & Anor. (1986) 3 NWLR (Pt. 26) 63

Ekpe v. Fagbemi (1978) All NLR 107.

Enoch Anukwua & Others v. Ohia & Others. (1996) 5 NWLR (PT. 40) 180.

Fasikun II v. Oluronke II (1999) 65 LRCN 114.

Gamboruma v. Borno (1997) 3 NWLR (Pt. 495) 530.

Imana v. Robinson (1979) 3 – 4 SC 1.

Incar (Nig.) Ltd. v. Adegboye (1985) 2 NWLR (Pt. 8) 453.

Joshua v. State (2000) 5 NWLR (Pt. 620) 538.

Kalu v. Odili (1992) 5 NWLR (Pt. 240) 150.

Kurubo v. Zach-Motison (Nig.) Ltd. (1992) 5 NWLR (Pt. 239) 102.

Lauwers Import – Export v. Jozebson Ind. Ltd. (1988) 3 NWLR (Pt. 83) 429.

Maigoro v. Garba (1999) 10 NWLR (Pt. 624) 555.

Momah v. Vab. Petroleum Incorporated (2000) 4 NWLR (Pt. 654) 534.

Murfelt v. Smith (1887) 12 PD 116.

NEPA v. Alli (1992) 8 NWLR (Pt. 259) 279.

Nigeria-Arab Bank Ltd. v. Barri Eng. Nig. Ltd. (1995) 9 SCNJ 147.

Nwanko v. Government of Rivers State (1989) 2 NWLR (Pt. 104) 470.

Obasuyi v. Business Ventures Ltd. (2000) 5 NWLR (Pt. 658) 668.

Ogbonna v. A.G. Imo State and Ors. (1992) 7 LRCN 221.

Ogidi v. Egba (1999) 20 NWLR (Pt. 621) 42.

Ohima v. Ude (1996) 7 NWLR (Pt. 461) 379.

Ojegbe v. Omatsone (1996) 6 NWLR (Pt. 608) 591.

Okeke Anadi v. Okeke Okoli (1977) 7 SC 57.

Okonkwo v. Co-operative and Commercial Bank (Nig.) Plc. (1997) 6 NWLR (Pt. 507) 48.

Okorie v. Udom (1960) 5 FSC 162.

Okpiri v. Jonah (1961) 1 SCNLR 194.

Onowhosa v. Odisou (1999) 65 LRCN 1.

Oshinjirin v. Elias (1970) 1 All NLR 153.

Osuji v. Isiocha (1989) 3 NWLR (Pt. 111) 623.

Oviasu v. Oviasu & Anor. (1973) 11 SC 315.

Oyegbola v. Esso West African Incopr. (1966) 1 All NLR 170.

Oyeyipo v. Oyinloye (1987) 1 NWLR (Pt. 50) 356.

Pfeiffer v. Midland Railway Company (1887) 18 QBD 243.

Registered Trustees of Anglican Diocese of Ibadan v. Managing Proprietor Liberty Secondary Commercial Academy (1971) 1 U.I.L.R. 46.

Rinco Construction Co. Ltd. v. Veepee Ind. Ltd. (1992) 5 NWLR (Pt. 240) 248.

Soetan v. Ogunwo (1975) 6 SC 67.

Ude v. Chimbo (1998) 12 NWLR (Pt. 577) 169.

William v. Hope Rising Voluntary Funds Society (1982) 1 All NLR (Pt. 1) 1.

Woluchem v. Gudi (1981) 5 SC 291.

Statutes referred to in the judgment

Constitution of the Federal Republic of Nigeria, 1979 s.33

Constitution of the Federal Republic of Nigeria, 1963 s.22(1)(3)

Penal Code s. 22(b)

3PLR – LAWAL MOHAMMED V. PARTRICK O. NWOBODO

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