IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, THE 24TH DAY OF APRIL 1970
ADEJUMO AND ANOR .................................................. APPELLANTS
GOVERNOR OF LAGOS STATE ............................................... RESPONDENT
BEFORE: Ademola, C.J.N., Madarikan and Udoma, JJ.S.C.
Practice and Procedure-Whether application to set aside for irregularity in High Court should be by way of motion-Order 2, rule 2 English Rules in White Book 1967.
Practice and Procedure-Evidence-Document-Objection to the use of document should be taken when all facts are put before the court and not at the preliminary stage.
Practice and Procedure-Action-Typographical error-Duty of Counsel and Judge to put right non consequential matters in order to bring case up to state of hearing and to proceed with hearing of case.
Appeal from the High Court of Lagos.
(1) The golden rule of practice is not to spring surprises on your adversary. Applications to set aside for irregularity in the High Court should be made by way of motion-see Order 2, rule 2 English Rules in the White Book 1967.
(2) Objection to a document being made use of in a case should be taken when all the facts are put before the court and not at the preliminary stage. In this case, the trial Judge was in error in striking out exhibit E recited in paragraph 6 of the affidavit before the court.
(3) The duty of Counsel and judge is to put right non consequential matters in order to bring a case up to the state of hearing and to proceed with the hearing of the case.
In this case, the trial Judge should have invited argument after he had been told it was a typographical error (since the mistake was not made in other paragraphs of the affidavit) and his duty was to have the year 1967 corrected to read 1968 and get on with his business.
It is not right for the Governor of a State to be put to the trouble, and possibly the risk, of swearing to affidavits in matters in Court when the facts to be sworn to are within the knowledge of his Principal Secretary or the Law Officers themselves. It may put the Governor in a position of being a principal actor in the litigation in an action in which he is merely a nominal party. The risk is that the door is thrown open for the other side to bring the Governor into the arena of the litigation. This may happen in many ways which may make it unpleasant for the Governor.
Appeal allowed: High Court to continue with hearing of application for order of certiorari before another judge.
Cases referred to:
In re Jessopp (1901) W.N. 128.
Cole v. Agu Suit No. LD/295/69 of 25th August 1969.
Decrees referred to:
Decree No. 41 of 1966 section 8.
Investigation of Assets (Public Officers and other persons) Decree 1968.
Rules and Order referred to:
English Rules of Court Order 2, rule 2 (White Book 1967).
APPEAL from the High Court of Lagos.
Chief Williams for the appellants.
Hotonu, Ag. Principal State Counsel, (with him, Jinadu, State Counsel, Grade I) for the respondents.
Ademola, C.J.N. (delivering the judgment of the court):-On an application for an order of certiorari to issue, made by Counsel in the High Court of Lagos, an affidavit was filed in support of the motion showing evidence upon which the applicant relied. Grounds relied upon were also set out. It would appear that certain Orders made by the Military Governor of Lagos, who is the present respondent, were required to be removed into court for the purpose of being quashed. The two Orders involved were made on the 23rd July, 1969, and published in the Gazette as Lagos State Legal Notice No. 13 and Lagos State Legal Notice No. 14 and entitled:-
(i) The Public Officers and Others Persons (Forfeiture of Assets) Order 1969, and
(ii) The Public Officers and Other Persons (Making of Reparation) Order 1969, respectively.
The first appellant at the material time was a public officer in the service of the Lagos State, and the 2nd appellant is his father. It would appear that the two Orders complained of were made after the assets of the 1st appellant had been probed by a Tribunal appointed by the Governor.
We are, for the purpose of this ruling, not concerned with the grounds upon which the relief for certiorari was based. It is with two paragraphs of the affidavit of the 1st appellant filed in support of the motion for an order that we are concerned. They are paragraphs 2 and 6, and they read:-
"2. That in pursuance or purported pursuance of the provisions of section 4 of the Investigations of Assets (Public Officers and Other Persons) Decree 1967, the respondent appointed a tribunal of inquiry by instrument a true copy of which is contained in the published Official Report of the Proceedings of the said tribunal on 6th January, 1969, being the 1st day and which Report is now shown to me and marked exhibit A."
"6. That the document now shown to me and marked exhibit E is a true copy of the proceedings of the said tribunal on its 45th day of sitting and it contains a true copy of the proceedings before the tribunal on the 10th April. 1969."
Now, when the motion praying for the order came up for hearing, the Principal State Counsel raised a preliminary objection. They were as follows:-
(i) In respect of paragraph 2 of the applicant's affidavit the decree referred to as Decree 1967 is wrong as there was no such Decree in 1967, and
(ii) Exhibit E referred to in paragraph 6 in the documents supporting the application cannot be exhibited, since it is not admissible as evidence.
He referred to section 4(3) of Decree 1968, and also section 8 of Decree No. 41 of 1966, and asked that both paragraphs be struck out.
The arguments on both sides, as well as the judge's ruling, were brief. The latter is as follows:-
"My view is that the exhibit E recited in paragraph 6 of the affidavit of 1st applicant is not properly exhibit; such exhibition offends against the provision of section 8 of No. 41 Decree 1966. Exhibit E as it stands at the moment is struck out."
(2) There is nothing like Decree 1967 as recited in paragraph 2 of the affidavit of 1st applicant; the correct Decree is Decree 1968. Paragraph 2 should and is accordingly struck out.
Leave to applicant to file proper document."
We would like in the first place to call attention to the in promptu manner Counsel have on many occasions raised objection of importance before the courts.
The golden rule of practice is not to spring surprises on your adversary. Applications to set aside for irregularity in the High Court should be made by way of motion-See Order 2, rule 2 English Rules in the White Book 1967.
Taylor, C.J. in the High Court of Lagos in a ruling delivered on 25th August, 1969, in Suit No. LD/295/69 in Cole v. Agu called attention to the practice whereby surprises are "sprung" on Counsel by their opponents. It is hoped that Counsel will observe the rule in future, that applications should be made by way of motion.
In regard to the ruling about Decree 1967, with the utmost respect, the learned judge appears to us to have so much time at his disposal to deal with such inconsequential matters. Instead of inviting an argument after he had been told that it was a typographical error (since the mistake was not made in other paragraphs of the affidavit) his duty was to have the year 1967 corrected to read 1968 and get on with his business. The duty of Counsel and the judge is to put right non-consequential matters in order to bring a case up to the state of hearing and to proceed with the hearing of the case.
If the ruling of the learned judge were limited to the question of the typographical error of "1967" it would have been easier for Counsel for the appellant to conform and get on with the substantive case before the court. But this was not so. There was the other point relating to exhibit E which Counsel maintained was not evidence given before the tribunal. The State Counsel relied on section 8 of Decree No. 41 of 1966 for its inclusion in the present proceedings as made use of in paragraph 6 of the 1st applicant's affidavit. We observe that the learned judge did not strike out paragraph 6 of the affidavit as he was requested to do, but struck out the exhibit E.
Now, section 8 of Decree No. 41 of 1966, Tribunals of Inquiry Decree, reads:-
"Evidence taken under this Decree shall be inadmissible against any person in any civil or criminal proceedings whatever, except in the case of a person charged with giving false evidence before the members."
Counsel for the appellants stated that exhibit E is not evidence given before the tribunal; it was address of Counsel at the tribunal. For the respondent it was argued that Counsel's address emanated from the evidence given, and as such it should be caught by the section as well. To our mind, evidence before an inquiry is something different from the address of Counsel at the inquiry. In any case, section 8 speaks on the admissibility of the evidence against any person, it does not say that the evidence is not admissible for any other purpose. It is inadmissible only if it is to be used as evidence against any person in civil or criminal proceedings.
But whether or not Counsel's address is evidence the question remains, at what stage should Counsel object to the document being made use of in the case? Is it proper to object to a paragraph of an affidavit, or a document exhibited in an affidavit, before the substantive action is heard or before it is known to what use document would be put? We think not. In our view objection should be taken when all the facts are put before the court and not at the preliminary stage. In the case In re. Jessopp (1910) W.N. 128, where a solicitor filed an affidavit which contained extracts from certain letters written without prejudice, and this was objected to and it was sought to strike out the relevant portion of the affidavit, the application to strike out was dismissed. On Appeal, Cozens Hardy, M.R. said:-
"The application is misconceived. For many purposes letters written without prejudice might be read, and the proper time for objecting that they were inadmissible in evidence was when the summons come on for hearing when all the facts were before the court. It would be a bad example to decide the question of admissibility at this preliminary stage."
We are of the view that the learned judge was in error in striking out exhibit E recited in paragraph 6 of the affidavit before the court.
It is ordered that the High Court should continue with the hearing of the application for an order of certiorari before it, and this before another judge.
One or two matters came before us during the hearing of this appeal about which we would like to make some observations.
In the first place, it was brought to our notice, during the hearing, that the Military Governor (the respondent) had sworn to an affidavit in the proceedings in this matter for the High Court. It is our duty to call attention to this unwonted practice which, we regret to say, the Law Officers have indulged in. Is it right that the Governor of the State be put to the trouble, and possibly the risk, of swearing to affidavits in matters in court when the facts to be sworn to are within the knowledge of his Principal Secretary of the Law Officers themselves? Is the Governor not being put in a position of being a principal actor in the litigation in an action in which he is merely a nominal party? The risk is that the door is thrown wide open for the other side to bring the Governor into the arena of the litigation. This may happen in many ways which may make it unpleasant for the Governor.
And finally, as the highest Court in the country, it is our duty, to point out that more and more cases are coming up in this Court, and incidentally in the High Courts as we have noticed from records of appeals before us, where the presence of senior Law Officers, who are at present notable for their absence in court, is desirable, instead of leaving matters to their juniors, some of whom, we have noticed, need to be guided in court.
This, of course, is no reflection on State Counsel generally, but the presence and guidance of more experienced Counsel in these important matters would not only help to lighten the burden and responsibilities of the judges, who are already overburdened, but it will also earn some dividends to the Chambers of Law Officers.
Appeal allowed: High Court to continue with hearing of application for order of certiorari before another judge.