Courts 2

• Pages: 1-616

1

(155) FUNCTIONS OF COURT UPON INSTITUTION OF CASE

1161. Court not to aid performance of contract based on fraud.

“If the power of attorney is adjudged to be a forgery then any transaction founded on

it will be null and void. A Court of law will not lend its aid to enforce the performance

of a contract predicated on a forged document.” - Per Aderemi, J.C.A. in Okafor v.

Soyemi Suit No. CA/L/225/95; (2001) 2 N.W.L.R. (Pt. 698) 465 at 473.

1162. Functions of Court upon institution of action.

“Upon the institution of an action in this country, the Court generally is saddled with

three functions, namely, first the determination of matters in controversy between the

parties, second, the making or pronouncement of order as to costs of the proceedings

and thirdly, the assessment as regards to quantum of costs. The first maybe called

the routine function of the Court in respect of all actions and interlocutory applica-

tions placed before the Court.” - Per Achike, J.C.A. in C.C.B (Nig) Plc. v. Okpala

& Anor Suit No. CA/E/66/96; (1997) 8 N.W.L.R (Pt. 518) 673 at 697.

1163. Functions of Court.

(1) “I will, however, hasten to say that if on a proper construction of either or both

sections of the Edict, a power be given to the Court below to make the variation

order it did, then, “cadit quaestio”. The matter ends there. The issue must be

resolved against the appellant. Why? Simply because the function of the Courts,

whether inferior or superior, is, if I may diverge to latin, “legem dicere”, to declare

the law and apply the law for what it says and as it stands. It is not “legem

dare”. - Per Nsofor, J.C.A. in Ohanaka v. Achugwo & Anor Suit No. CA/PH/84/

95; (1998) 9 N.W.L.R (Pt. 564) 37 at 66.

(2) “The function or role of act of law is to adjudicate on disputes or issues joined by

the parties. A Court of law or Tribunal has no jurisdiction to instigate or foment

litigation between parties on issue or issues they are not prepared to litigate upon.

Therefore where a Court or Tribunal suo motu raises matters, which the parties are

not prepared to in as issues, an appellate Court will certainly intervene and I inter-

vene here. It is clear from the record that none of the parties asked for a relief

declaring the resignation of the 1st respondent ineffective or inoperative, as the learned

Tribunal did. The order was made without jurisdiction and I hereby declare it null and

void ab intio. The cross- appeal therefore fails and it is dismissed.” - Per Tobi,

J.C.A. in Nnamani v. Nnaji Suit No. Suit No. CA/3/60/99; (1999) 7 N.W.L.R (Pt.

610) 313 at 320.

(3) “The function of the Courts is not “to make” any laws. No. It is not, legem dare.

Their function is: Legen dicere, to declare the law. Therefore if in declaring the law

COURTS 2

Functions of Court upon Institution of case Paras. 1161-1163

Paras. 1163-1166 Vol. 6 Pt. II: COURTS 2 2

not giving or making the law, “hardship” be caused to a Nigerian citizen that is, not

the responsibility of the Courts. No To avoid or remove the “hardship” the Nigerian

citizen ought to approach the law makers to make another law.” - Per Nsafor, J.C.A.

in Adebowale & Ors v. Military Governor Ogun State & Ors Suit No. CA/I/4/89;

(1995) 4 N.W.L.R (Pt. 392) 733 at 744.

1164. Order of Court subsists until set aside.

“The order contained in his judgment subsists until it is set aside. The respondent

herein having elected to live with the judgment by not appealing against same cannot

by a back door seek to torpedo it.” - Per Salami, J.C.A. in Hydroworks Ltd. v. Rimi

Local Govt. Suit No. CA/K/248/2000; (2002) 1 N.W.L.R. (Pt. 749) 564 at 581.

1165. Trial Judge’s function in relation to pleadings.

(1) “A trial Court has responsibility to try issues of fact raised in the parties’ pleadings

and substantiated by evidence and not to engage itself in speculation. See Seismo-

graph Service (Nig.) Ltd. v. Ogbein (1976) 4 S.C. 85 at 101 and State v. Aibangbee

(1988) 3 N.W.L.R. (Pt. 84) 548.” - Per Achike, J.C.A. in Olawuyi & Ors v. Adeyemi

Suit No. CA/K/36M/89; (1990) 4 N.W.L.R. (Pt. 147) 746 at 780.

(2) “It will be demonstrably contrary to the proper function of the Court to embark

upon an inquiry outside the pleadings or to adjudicate on any matter not put in issue by

the pleadings. Cautioning on the need for the Court to restrict itself to the parties’

pleadings, Oputa, J.S.C., in that celebrated case, Overseas Construction Ltd. v.

Creek Enterprises Ltd. (1985) 3 N.W.L.R. (Pt. 13) 407 at p. 419, stressed: “The

duty of a trial Court is limited, strictly limited, and confined to trying the issue arising

from the pleadings. A trial Court is not to go on a wild goose chase, to embark on an

academic exercise in which all sorts of questions are discussed at will without refer-

ence to the pleadings, to the issues and to the admissible evidence.” See also Emegokwe

v. Okadigbo (supra), Eunice Aguocha (Mrs.) v. Madam Elechi Aguocha (1986) 4

N. W. L. R. (Pt. 37) 566.” - Per Achike, J.C.A. in Olawuyi & Ors v. Adeyemi Suit

No. CA/K/36M/89; (1990) 4 N.W.L.R. (Pt. 147) p. 746 at 780.

(156) HIERACHY OF COURT

1166. Bindingness of the decision of High Courts on lower Courts.

“The judgment of the Supreme Court being the apex Court in Nigeria is binding on all

Courts in Nigeria and no inferior Court from the Court of Appeal downwards can

pronounce the judgment of the supreme Court as not binding on it or that the judg-

ment was given per incuriam: Jalo Tsamiya v. Bauchi Native Authority (1956)

S.C.N.L.R. 220 (1957) N.R.N.L.R. 73 at 82. “We do not quarrel with the High

Court’s decision not to follow their own previous decisions. If they felt that the deci-

sions had been reached per incuriam; but there is no precedent for their refusing to

3 Hierachy of Court Paras. 1166-1168

follow a previous decision of W.A.C.A. on the subject matter of the inquiry because

they considered that that decision had been reached per incuriam. With respect to

the learned chief Judge and other members of the Court, it must be pointed out that it

is not for an inferior Court to say that a decision of the higher Court was reached per

incuriam, that is a privilege of the higher Court, if, after reconsidering its former

decision, it is satisfied that the previous decision had been reached per incuriam.” -

Per Onalaja J.C.A. in Gen. Elec. Co v. Akande (1999) 1 N.W.L.R. (Pt. 58) 532 at

545.

1167. Party not allowed to set up different cases in each hierarchy of Court.

“It is settled law lucidly put in the case of Silli v. Mosoka (1997) 1 N.W.L.R. (Pt.

479) 98 and Attorney-General, Anambra State v. Onuselogu (1987) 4 N.W.L.R.

(Pt. 66) 547 that a party is not allowed to set up a different case in each of the

hierarchy of Courts. By the powers conferred by Section 59(2) of the Area Court

Law a High Court appeal could receive additional evidence provided it is properly

applied for.” - Per Chukwuma-Eneh, J.C.A. in Tsume v. Peverega Suit No. CA/J/

268/93; (2001) 2 N.W.L.R. (Pt. 698) 556 at 572.

1168. When lower Court can treat decision of higher Court per incuriam.

“A similar reaction, albeit with a subdued resentment, followed in the supreme Court’s

decisions in Adegoke Motors Ltd v. Adesanya (supra), at pages 330 and 338 and

Yussuf v. Dada, (1990) 68, (1990) 9 N.W.L.R. (Pt. 146) 657, 83. However in Atolagbe

v. Awani (1997) 7 S.C.N.J. (1997) 9 N.W.L.R. (Pt. 522) 536 S.C. at 544, the Su-

preme Court came down hard on a State High Court Judge who for no justifiable

reason refused to follow a decision of the Court of Appeal. See pages 21, 24 and 35

of the Law Reports for the variants of the outburst which was moderated in the

leading judgment by the chief justice of Nigeria who, at page 20 expounded the

theme, inter alia, as follows: - “It is now settled that under the common law doctrine

of precedent or stare decisis the Court may be criticized by the Judge of a lower

Court but notwithstanding the criticism, the Judge of the lower Court is bound to

follow and apply such decision in the case before him. He also has no right to disre-

gard the decision or side-track it. It was quite wrong for the learned trial Judge to

prefer the decision in Bakare’s case to that in Gambari’s case since the decision in

Bakare’s case has no bearing on the facts of the case before him”

Nwako v. Governor of River State, (supra) and Ebiteh v. Obiki, (supra)

are two of such decisions in which the justices of this Court took liberties with some

abstruse points of law in the decisions of the supreme Court but the privilege of the

higher Court to have it decisions respected and followed was sustained by the cri-

tiques and kept inviolable and undiminished. This is rooted in the ethics of the higher

judicial bench apart from divergence of the principles of law that is kept in check by

the doctrine of stare decisis. Therefore, in view of the current of judicial authorities