In The Supreme Court of Nigeria
On Friday, the 8th day of June 1990
SC 174/1989
Before Their Lordships
Andrews Otutu Obaseki – Justice, Supreme Court
Augustine Nnamani – Justice, Supreme Court
Abdul Ganiyu Olatunji Agbaje – Justice, Supreme Court
Philip Nnaemeka-Agu – Justice, Supreme Court
Abubakar Bashir Wali – Justice, Supreme Court
Between
Dr. Sola Saraki – Appellant
And
N.A.B. Kotoye – Respondent
Judgement of the Court Delivered by Andrews Otutu Obaseki. J.S.C.
This appeal is against the decision of the Court of Appeal, Lagos Division, delivered on the l7th, day of April, 1989 which partially reversed the decision of the Federal High Court, Lagos granting an order of interlocutory injunction against the respondent to restrain him from exercising any right in respect of some shares in dispute held in the Bank (Societe Generale Bank (Nigeria) Ltd). After the appeal was entered in the Supreme Court, the appellant filed a motion for “an interim injunction to restrain the defendant/respondent from exercising any of the rights attaching to the 2,333,000 N1 shares in the Societe Generale Bank (Nigeria) Limited pending the appeal filed by the plaintiff herein to the Supreme Court.”
After hearing argument of counsel, the Court decided to hear arguments in the appeal and decide the issue raised which was similar in nature to the issue raised in the motion. Parties and their counsel were duly invited and notified in open court and the date fixed for hearing of the appeal was brought forward from September 1990 to 3rd February, 1990. The periods for filing briefs were abridged with the concurrence of counsel by the court and the stage was set for the hearing of the appeal.
Before the hearing date, the 1st day of March, 1990 to be definite, learned counsel filed a notice of motion praying for enlargement of time to file the respondent’s brief. Also filed at the same time was a notice of intention to rely upon preliminary objection to grounds 1(b) and ground 3 and the arguments in the appellant’s brief under paragraphs 3.4, 4.5 and 6. Almost simultaneously with the filing, the plaintiff / appellant filed notice of motion for amendment of ground (111) by substituting identical grounds differently worded. The plaintiff/appellant had earlier also filed a notice of motion to amend the notice of appeal by deleting the phrase:
On the ground that injunction granted reversed the status quo and did not maintain it.
From ground 1 of the grounds of appeal. The defendant’s/respondent’s motion for enlargement of time to file respondent’s brief being unopposed and of substantial merit was granted as prayed.
The motion for amendment to ground (iii) was not argued and accordingly, I hereby strike it out.
The application for enlargement of time to file respondent’s brief having been granted as prayed, the stage was set for the respondent to argue his notice of preliminary objection which was set out in Part 1 of the brief.
Learned counsel for the defendant/respondent alleged that the ground 1(b) is vague and has not specified the particulars upon which the appellant relies or the nature of any error which may have been made by the Court of Appeal. He further contended that paragraph 1(b) of the particulars merely contends that in the particular circumstances of this case as disclosed on the pleadings and the affidavit evidence, the order made by the High Court was A sound and ought not to have been reversed by the Court of Appeal.
He further contended this item is itself a ground of law complaining that the Court of Appeal was in error but it does not set out the particulars and nature of the error as required by Order 8 Rule 2(2) of the Rules of the Supreme Court, 1985. This, according to learned counsel, is so; notwithstanding that paragraph 1(b) is listed as one of “particulars of errors” under the main ground. He cited Order 8 Rule 2(2) Supreme Court Rules, 1985 as authority.
In reply, learned counsel for the respondent objected that the objection was raised rather later in the day and as such, it should not be entertained by the court particularly as the defendant/respondent had taken a fresh step to wit taking a date for the hearing of the appeal and applying for enlargement ~ of time to file respondent’s brief and filing respondent’s brief. He relied on Order 2 Rule 29(1) Supreme Court Rules, 1985 as authority. Learned counsel further contended that the ground 1(b) satisfies the Rules of Court Order 8 Rule 2(2).
The objection of appellant’s counsel, Chief F.R.A. Williams, S.A.N., based on Order 2 Rule 29(1) Supreme Court Rules, 1985 is well founded. The Rule Order 2 Rule 29(1) reads:
An application to strike out or set aside for non- compliance with these Rules or for any other irregularity arising from the rules of practice and procedure in this Court any proceedings or any step taken in these proceedings or any document, judgment or order therein shall only be entertained by the court if it is made within a reasonable time before the party applying has taken any fresh step after becoming aware of the irregularity.
I observe that the notice and grounds of appeal were filed on 24th April, 1989.1 also observe that respondent filed his brief containing the objection on 1st March, 1990. Although the notice of intention to rely on the preliminary objection has not, in my view, been made within reasonable time. It is F also devoid of merit.
I am unable to accept the contention of learned counsel for the respondent that ground 1(b) is vague and that particular (b) of ground 1 does not satisfy the Rules – Order 8 Rule 2(2).
With regard to ground 3, learned counsel for the respondent contended that the ground is vague and that the particulars of the facts and circumstances referred to therein as grounds upon which the decision of the Court of Appeal cannot be supported are not specified therein. In reply, learned counsel for the appellant submitted that the ground has been stated as concisely as the Rules required and particulars of facts and circumstances are not required by the Rules the ground being in the nature of an omnibus ground. I cannot see any merit in the objection to ground 3.
The ground, which complains that the decision cannot be supported having regard to the facts and circumstances of the case before the court, is complete in itself. It is not vague and does not require particulars. It does not require particulars because the particulars of errors are implicit in the allegation of disregard to the facts and circumstances of the case before the court.
The 3rd ground of objection cannot be classified strictly as a complaint against the grounds of appeal. The complaint is that the arguments in paragraphs 3.4, 4.5 and 6 are not in support of or are not founded on any of the grounds of appeal. According to learned counsel for the respondent, the arguments have no basis as they have no origin in the grounds filed but appear to be on the grounds not filed in the appeal before the court.
Commenting specifically on paragraph 3.4 of the appellant’s brief, learned counsel for the respondent observed that there was no ground of appeal that the Court of Appeal was wrong in deciding that the court below must confine itself to the evidence before it before making the order.
On paragraph 4 of the appellant’s brief, learned counsel observed that there was no ground of appeal in support of the argument that the Court of Appeal should not have curtailed the injunction because the plaintiff in the court below had been contending that the defendant held the shares as a trustee. He however conceded that ground 2 complained of the curtailment of the scope of the order of injunction but argued that the complaint was for the court’s failure to have regard to its previous ruling refusing the application for stay of the interlocutory injunction.
Dealing with paragraph 6 of the brief, learned counsel commented that the only ground of appeal relating to reversal of the status quo is amended ground 1(b). He observed that the ground has not contended that there are other basis and has not set out these other basis for preserving the status quo. There is no ground putting forward the contention that the defendant is holding as a trustee as has been done in the brief.
Dealing with paragraph 5 of the brief learned counsel for the respondent observed that the paragraph dealt with the principles of law which should guide the court or which the court should follow in setting aside the decision of the court below. It was not, learned counsel contended, in support of any ground.
In reply, learned counsel for the appellant attacked the objections on two grounds:
(1) that the application to strike out the appeal on the grounds that the grounds of appeal are vague and did not contain particulars of and nature of errors of law or misdirection as required by Order 8 Rule 2(2) Supreme Court Rules, 1985 is too late in the day since the respondent has taken fresh step after becoming aware of the irregularity contrary to Order 2 Rule 29(1) Supreme Court Rules, 1985.
He then relied on a decision of this court in the case of Nigerian Produce Company v. Noga S.A. (1971) 2 Nigerian Commercial Law Report 211. Learned counsel referred to the appearance of the respondent in this appeal on 15th January, 1990. He did not raise his objection then, learned counsel for the appellant reminded the court and referred to the power of court to do justice under Order 10, Supreme Court Rules, 1985.
Learned counsel also submitted that it was too late to strike out the brief as the application was not made within a reasonable time. He contended that the application should not be delayed to the date fixed for hearing of the appeal. Learned counsel then dealt with the merit of the objection. He observed that the matter before the court concerned the exercise of the court’s discretion and submitted that in that type of case the appellant is permitted to say that on the facts and circumstances of the case, the discretion was not exercised judiciously. He then referred to the case of Odusote v. Odusote (1971) Vol.7 N.S.C.C. 228; (1971)1 All N.L.R. 219. He contended that when dealing with questions of law alone, the circumstances bad to be worked out. See Nafiu Rabiu v. The State (1981) Vol.2 N.S.C.C. (1981) 2 N.C.L.R. at 293. Learned counsel for the respondent conceded that his application has not complied with the requirement of Order 2 Rule 9(1) SCR. 1985. He also agreed that he agreed to the abridgment of the time prescribed by the Rules for the filing of briefs to 7 days from the date of service of appellant’s brief. He contended that Order 2 Rule 29(1) Supreme Court Rules, 1985 is inapplicable.
With regard to the complaint against ground 1(b) and ground 3,1 can find nothing vague in the two grounds. When is a ground vague? It is vague when it is not clearly, precisely or definitely expressed or stated. Can one say that the complaint or issue raised in ground 1(b) is vague? Can one also say that the complaint or issue raised in ground 3 (of the grounds of appeal) is vague? I would answer the questions in the negative. [If the grounds had been vague, I would have had no hesitation in upholding the preliminary objection and striking them out. The Rules of Court, Supreme Court Rules, 1985 does not give any accommodation to grounds that are vague or grounds that fail to give the nature and particulars of errors and misdirection. See
Okeke Amadi v. Okeke Okoli (1977) 7 S.C. 57 at 63
Mba Nta v. Anigbo (1972) 5 S.C. 156, 164
Osawaru v. Ezeiruka (1978) 6-7 S.C. 135
Atuyeye v. Ashamu (1987)1 N.W.L.R. (Pt.49) 267 at 282
Particulars (b) of ground 1 is not a ground by itself but the particulars and nature of errors complained of although learned counsel for the respondent contended that it could concurrently by itself be a ground of appeal. The pleadings and affidavit having been mentioned therein, the need to set them out in the particulars of errors does not arise. Similarly, ground 3 having complained of the decision being unsupportable having regard to the facts and circumstances before the court, it is not in the contemplation of the Rules that all the facts and circumstances be set out in the particulars.
Turning to the complaint above, paragraph 3.4, sections 4, 5 and 6 of the appellant’s brief of argument being arguments in support of a ground not before the court, an examination of ground III (three) discloses that the arguments in paragraphs 3.4 and section 4 are based on it. Similarly, an examination of ground 1(b) discloses that the arguments in paragraphs 3.4 and section 4, 5 and 6 are based on it. Paragraph 3.4 dealt with the question whether the facts and circumstances include the pleadings. Paragraphs 4 and 11 of the counter-affidavit does import the facts in the pleadings filed or settled and ready for filing into these proceedings for consideration. More expressly, paragraph 13 of the counter-affidavit reads:-
“The statement of defence and counter-claim proposed to be filed herein has been settled and is now ready for filing and the averments of fact therein represent the true state of facts of the matters in issue herein and I rely upon the averments of fact contained therein in opposition to this application.”
Statement of defence and counterclaim being a reply to statement of claim cannot be considered in total isolation from and disregard of the statement of claim.
Section 4 deals with the scope of the injunction and the arguments under the section are in support of grounds 1, 2 and 3 of the grounds of appeal…
Appeal Allowed
Counsel
Chief F.R.A. Williams, S.A.N.
With Alhaji Abdul Rasaq, S.A.N., Durojaiye, Y.A. Bayero – For the Appellant
Chief G.O.K. Ajayi, S.A.N. With O. Ayanlaja, S.A. Adebokun and A.A. Oriola – For the Respondents
