OSENI V. AKINBINU
Pages | 22-43 |
22
NIGERIAN SUPREME COURT CASES
[1992] 1 N.S.C.C.
by statute (vide
Olaniyan & Ors. v. Unilag
(1985) 2 N.W.L.R. 559) has already been
decided by her.
Here again this statement cannot be seriously suggested to have guided her
decision. It certainly did not affect the decision of the court below, which very wisely
refused to consider that issue, conscious as it was that
"In dealing with the application for interim injunction, such as the instant one,
great care must be taken not to step into the arena of the substantive case
pending between the parties in order to avoid making pronouncements that
may be prejudicial to the said case."
For the reasons which I have set out hereinbefore and the fuller treatment on
the issue of balance of convenience in the lead judgment of my learned brother
Wali, J.S.C., which I adopt as mine, I also dismiss the appeal as lacking in merit. I
also subscribe to the view, and so order, that because of the unfortunate remark
made by the learned High Court judge, the substantive case should be heard by
another judge of the Kaduna High Court.
I also agree that each party should bear its own costs of this appeal.
Appeal dismissed.
OSENI V. AKINBINU
YISA EYIFUNMI OSENI
V.
JULIANA IBIYEMI AKINBINU
SUPREME COURT OF NIGERIA
KARIBI-WHYTE,
J.S.C.
BELGORE,
J.S.C.
WALT,
J.S.C.
A KPATA ,
J.S.C.
OMO,
J.S.C.
10th January, 1992.
PLAINTIFF/RESPONDENT
DEFENDANT/APPELLANT
APPEAL No. SC.131/1987.
25
3C
3f
Appeals - Incompetent ground of appeal - Jurisdiction of an appellate court in relation
4(
thereto.
Practice and Procedure - Jurisdiction - Appellate Court - Whether can make
pronouncements on an incompetent ground of appeal - Obiter dicta - When is a court
permitted to make same - Trial - Interference by judge in the conduct of counsel's case
- Propriety of
Professional ethics - Legal Practitioner - Joinder as a party to an action, on allegation of
fraud - Propriety and effect thereof
5
1C
15
2C
5
OSENI V. AKINBINU
23
ISSUE:
Whether a Court of Appeal having jurisdiction to hear an appeal is precluded
from making observations on any of the grounds of appeal which is
incompetent.
FACTS:
The plaintiff's claim against the defendant in the High Court was for the sum of
N140,000.00 being money payable by the defendant to the plaintiff as per a loan
agreement dated 25th November, 1977.
10
The defendant denied the claim in its entirety and alleged, in her statement of
defence, that the said loan agreement relied upon by the plaintiff, and prepared
by one Mr. Akin Ojo, her solicitor, was a fraud on her. Mr. Akin Ojo was called as a
witness by the plaintiff. During his evidence in chief, the solicitor admitted preparing
the loan agreement on the instruction of the defendant and that he delivered the
15 agreement to her on 24th November, 1977. According to him the defendant read
over the agreement and expressed satisfaction as to its contents.
The solicitor, Mr. Akin Ojo, was then subjected to a rigorous cross-examination
by the defendant's counsel, and it was suggested that the solicitor facilitated the
fraud on the defendant. in the course of the cross-examination the trial judge
20 dissallowed a question on the ground that the answer would be at variance with
the pleadings in the case. Defendant's counsel then intimated the court that he
would later bring an application to amend the statement of defence. The trial judge
then expressed the following opinion:-
"I think it will be necessary if you want to amend your pleading to bring a
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formal application and amend the pleading before putting the question in
that form. It is important also to stress that in this case there is a counter-
claim.
When the cross-examination continued, defendant's counsel put a question to
Mr. Ojo suggesting that he "secured the confidence of the defendant by playing
on the fact that both of you come from the same state." Plaintiff's objection to the
question was overruled by the court which insisted that the witness should answer
the question. The witness declined to answer the question, pleading sudden
illness. He then asked the court for an adjournment, which was agreed to by
counsel on both sides.
Before the adjourned date, defendant's counsel brought an application for
35 leave to amend the statement of defence and counter-claim, and to join the witness,
Mr. Akin Ojo, as a co- defendant in the action, the application was opposed by
plaintiff's counsel and Mr. Ojo who had been put on notice. The trial judge granted
the application and made an order joining Mr. Ojo as a co-defendant in the action,
and he also granted leave to amend the statement of defence and counter-claim.
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Mr. Ojo, joined as co-defendant, then appealed to the Court of Appeal against
the ruling of the learned trial judge. The Court of Appeal by a majority held that the
joinder of Mr. Ojo was improper, as it was not necessary for the determination of
the dispute between the parties, and also that the question of amendment of the
statement of defence suggested by the trial judge constituted a fundamental
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breach of the rules of impartial administration of justice. The Court of Appeal then
allowed the appeal and remitted the case to the High Court for trial de
novo
before
another judge.
Being dissatisfied, the defendant appealed to the Supreme Court against the
majority decision of the Court of Appeal, on ground,
inter alia,
that:-
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