Legalpedia Citation: (2024-03) Legalpedia 86103 (CA)

In the Court of Appeal

Holden At MAKURDI

Fri Mar 15, 2024

Suit Number: CA/MK/81/2020

CORAM

Cordelia Ifeoma Jombo-Ofo Justice

Biobele Abraham Georgewill Justice

Ibrahim Wakili Jauro Justice

PARTIES

ABUCOOP MICROFINANCE BANK LIMITED

APPELLANTS

1. REGINALD OKEUHIE
2. SAMSON ATULOBI
3. UCHECHUKWU ROBINSON
4. MR. NWASO MATIN
5. THE COMMISSIONER OF POLICE NASARAWA STATE
6. THE DPO MARARABA POLICE STATION
7. THE INSPECTOR GENERAL OF POLICE

RESPONDENTS

AREA(S) OF LAW

APPEAL, BANKING, CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The 1st and 2nd Respondents were the Applicants before the lower Court. They had sought to enforce some of the fundamental rights against the Appellant, who was the 2nd Respondent and the 3rd – 7th Respondents for the alleged breach of their right to liberty. They alleged that they were former employees of the Appellant who were framed up and brutalized and detained without any reasonable cause by the Police for the Appellant and the 3rd Respondent and for which they were arraigned on trump up charges before the Court and remanded in Prison custody. However, subsequently, on the advice of the Office of the DPP to the effect that they had no case to answer, they were released from Prison detention after their right to liberty and freedom of movement had been grossly curtailed and breached by the Appellant and the 3rd- 7th Respondents.

The Police, 4th – 7th Respondents, vehemently denied the allegations of breach of the fundamental rights of the 1st and 2nd Respondents and maintained that they were lawfully arrested and detained in connection with allegations of commission of very grave criminal offences including armed robbery and murder of a local guard at the premises that was allegedly robbed.

The lower Court proceeded to deliver its final ruling on 19/2/2020, in which it found the Appellant and 3rd – 7th Respondents liable for the breach of the fundamental rights of the 1st and 2nd Respondents as claimed by them and consequently, granted some of their claims against the Appellant and the 3rd – 7th Respondents. See pp. 74 – 80 of the Records of Appeal.

Upon communication of demand for the payment of the judgment sum of N6, 000, 000. 00 to the Appellant by the learned counsel for the 1st and 2nd Respondents on 4/6/2020 through a letter dated 1/6/2020, the Appellant proceeded to file on 16/6/2020 an Application before the lower Court to set aside the judgment of the lower Court on the ground that it was neither served with the Originating Application of the 1st and 2nd Respondents nor served with any hearing notice before the matter was heard and judgment entered against it. At any rate, it was also contended that the entire affidavit evidence of the 1st and 2nd Respondents did not disclose any cause of action against the Appellant, who was neither the Police nor the person who took any active part in the arrest, detention and remand of the 1st and 2nd Respondents in Prison Custody as alleged by them.

The lower Court dismissed the application to set aside its judgment for lacking in merit.

The lower Court also proceeded to hear a Motion Exparte filed by the 1st and 2nd Respondents as Garnishor against the Bankers to the Appellant/Judgment Debtor, and granted the same with cost of N400,000. 00 as cost for the Garnishee proceedings.

The Appellant who was the 2nd Respondent before the lower Court, was peeved with the said Judgment and Ruling hence the instant appeal.

HELD

Appeal allowed

ISSUES

1. Whether the lower Court did not breach the Appellant’s Right to fair hearing?
2. Whether the lower Court did not err in law in granting the prayers of the 1st and 2nd Respondents’ Ex- Parte Application?
3. Whether the lower Court has jurisdiction to determine the Application of the 1st and 2nd Respondents against the Appellant?

RATIONES DECIDENDI

FAIR HEARING – THE IMPORTANCE OF FAIR HEARING – CONDUCT OF COURTS REGARDING ALLEGATIONS OF BREACH OF THE RIGHT TO FAIR HEARING

The observance of the right to fair hearing of the citizen in the determination of their civil rights and obligations by every Court in the land is a fundamental prerequisite to valid adjudication to ensure that decisions are not reached without a hearing of the citizen. However, an allegation of denial of the right to fair hearing, as grave as it could be and the dire consequences it could have on the proceedings and judgment of a Court if proved, does not operate in a vacuum but is dependent on the facts and circumstances of each given case. In other words, whether the right to fair hearing was breached or not is a question of facts to be determined on the facts and circumstances placed before the appellate Court.

Thus, it is the law that each case of allegation of breach of the right to fair hearing must be decided on the peculiar facts and circumstances of each case since it is primarily a matter of fact. Therefore, it is only when the facts are ascertained that the law would be applied to the facts so established to see whether or not such established facts constitute a breach of the party’s right to fair hearing.

There can be no doubt that fair hearing, which in most cases is synonymous with fair trial and natural justice, is an issue which is clearly at the heart and threshold of our legal system and thus once it is shown that there has been a denial of fair hearing as guaranteed by the Constitution, the whole proceedings automatically becomes vitiated. A denial of fair hearing can ensue from either the conduct of the proceedings and or the decisions of the Court in the hearing of a case. See Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). See also Newswatch Communications Limited V. Alhaji Ibrahim Attah (2006) 12 NWLR (Pt. 993) 144. – Per B. A. Georgewill, JCA

RECORD OF APPEAL – THE IMPORTANCE OF THE RECORD OF APPEAL IN ADJUDICATION

In law, both the parties as well as the Court are bound by the Record of Appeal, which is accepted, unless it is successfully challenged as required by law, as the final reference or record of all that transpired and as record of the step by step events that took place in the Court. See Mr. Yemi Akinbisehin V. Mr. Ademola Bodunrin Olajide (2018) LPELR – 51172 (CA) per Sir Biobele Abraham Georgewill JCA. See also Ndayako V. Mohammed (2006) 17 NWLR (Pt. 1009) 655 @ p. 665; Chief Sir Victor Umeh V. Ichie Okuli Jude Ejike (2013) LPELR – 23506(CA); Veepee Ind. Ltd. V. Cocoa Ind. Ltd. (2008) NWLR (Pt.1105) 486; Funduk Engr. Ltd. V. McArthur (1995) 4 NWLR (Pt. 392) 640. – Per B. A. Georgewill, JCA

SERVICE – THE DUTY OF SERVING ORIGINATING PROCESSES AND ISSUANCE AND SERVICE OF HEARING NOTICE – THE ESSENCE OF SERVICE OF HEARING NOTICE – WHERE A PARTY TO A PROCEEDING IS AWARE OF THE DATE ON WHICH A MATTER IS SLATED FOR HEARING

Now, the issue of service of originating process as well as the issuance and service of hearing notice on a party are both accorded a prime place in our law as prerequisite to competent adjudication in our Courts. It is to enable parties to be duly notified of both the case pending against them as well as the hearing of their cases to either be present personally and or represented by counsel in the Court. However, it is also the law that once a party to a proceeding pending in Court is aware of or already knows or is reasonably presumed to have known of the date on which a matter is slated for hearing, fresh hearing notices will not be required to be issued or served on such a party. See Simon Ezechukwu & Anor V. I.O.C. Onwuka (2006) 2 NWLR (Pt 963) 151.

Thus, in law, the service of hearing notice may or may not be necessary or essential depending on the peculiar facts and circumstances of any given case. Happily, there is a surfeit of authorities as are replete in our law reports on when service of hearing notice may or may not be necessary. The essence of service of a hearing notice, as I understand it in law, is that it is designed to put parties on notice of a future date in which the Suit or Appeal or Matter will be called and or heard. The objective, in my view, is to give the parties equal opportunity of being fairly heard before any decision affecting their rights is taken.

It follows therefore, while the service of hearing notice may be a duty on the part of the Court on the one hand and a right of the parties on the other hand, the duty of issuing it and ensuring that it is served on that parties, whenever it is necessary is exclusively that of the Court. See Section 36(1) of the Constitution of Federal Republic of Nigeria 1999 as Amended. See also Gabdo V. Usman (2015) LPELR-25678(CA)per Sir Biobele Abraham Georgewill JCA; Folorunso V. Shaloub (1994) 3 NWLR (Pt. 333) 413 @ p. 430; Mirchandani V. Pinheiro (2001)1 FWLR (Pt. 48) 1307 @ p. 1320.

It follows therefore, at any time when it becomes clear to the Court that a party who is absent in Court was not aware of the date, it will be necessary for the Court, in the interest of justice and fair hearing, to order the issuance and service of a hearing notice. However, where ignorance of a sitting date is self – induced, it is my view that such a party in default is not entitled to a hearing notice. – Per B. A. Georgewill, JCA

HEARING NOTICE – THE REASON WHY HEARING NOTICE IS IMPORTANT TO ADJUDICATION – THE EFFECTS OF NOT ISSUING AND SERVING A HEARING NOTICE WHERE SAME IS NECESSARY – WHERE SERVICE OF HEARING NOTICE WOULD NOT BE NECESSARY – THE DUTY OF ISSUING AND ENSURING SERVICE OF HEARING NOTICE WHERE IT IS NECESSARY

So, why is hearing notice so important in the adjudication processes in the Courts? The importance of issuance and service of hearing notice is underscored by the grim consequences of failure to do so where it is deemed and or found to be necessary but was not served. The position of the law is that a failure to issue and serve hearing notice, in circumstances in which the issuance and service of a hearing notice is necessary, would amount to a fundamental omission, which would render the entire proceedings so conducted and the judgment so entered null and void and liable to be set aside on appeal. See Gabdo V. Usman (2015) LPELR-25678(CA)per Sir Biobele Abraham Georgewill JCA.See also Baba V. Atunbi (2012) 3 NWLR (pt. 1287) 354 @ pp. 366 – 368; Sigbenu V. Imafidon (2009) 13 NWLR (Pt. 1158) 231 @ P.252; Ndukauba V. Kolomo (2005) 4 NWLR (Pt. 915) 411; Scott-Emuakpor V. Ukavbe (1975) 12 SC 41; SPDC Nig. Ltd V. Niger Optical Service Co Ltd (2004) 7 NWLR (Pt. 872) 420; Somai Sonka Ltd V. Adzege (2001) FWLR (Pt. 68) 1104.

However, it must be pointed out at once that on the reverse side of the requirement of service of hearing notice is the ugly reality of it being subject to abuse by parties, particularly those who may cling to it as a right and become lackadaisical in the prosecution or defense of their cases. Thus, where a party or his counsel was in Court on the sitting of a Court and the case was adjourned to another further date, it will be incongruous for such a party to insist on service of hearing notice on him should he or his counsel fail to appear in Court on the next adjourned date. In law, a party who fails to take or make use of the opportunity given to him to present his case cannot be heard or allowed to complain of a denial of fair hearing. See Uhembe V. Parkes (2014) 3 NWLR (Pt. 1395) 475. See also Mirchandani V. Pinheiro (2001) FWLR (Pt. 48) 1307) @ Pp. 1318 -1320; Kaduna Textiles Ltd V. Umar (1994) 1 NWLR (Pt. 319) 143; Ajaokuta Steel Co Nig Ltd V. Biosah & Co Nig Ltd (1997) 11 NWLR (Pt. 527) 145; Eastern Breweries Plc V. Nwokoro (2012) 14 NWLR (Pt. 1321) 488.

Now, that since in law, all parties ought to be informed of when a matter in which they are involved and pending before the Court is due to be called up and/or be heard, all parties to a proceeding are entitled as of right to be served with all the Court processes, including hearing notices for the hearing of the case. This is so important that any dereliction in this regard is bound to vitiate the entire proceedings no matter how well conducted. Thus, it is the duty of the Court, and certainly not that of either of the parties in a pending litigation, to confirm before the hearing of a matter, except it is an ex – parte application, that there is proper service of the Court processes, including hearing notice whenever it is necessary to be served, on the other party who may be affected by the outcome of a proceeding before the Court. So, as it does often happen in the Courts, where a party was neither in Court nor was represented by a counsel, it is in the interest of justice that the Court should ensure that hearing notice is duly issued and properly served on such a party in relation to the next adjourned date for the cause or matter. See FBN Plc. V. TSA Ind Ltd (2010) 15 NWLR (Pt. 1216) 247 @ p. 309. See also Apeh V. PDP (2016) 7 NWLR (Pt. 1510) 153 @ p. 177.

The above is so because in law, non – service of hearing notice on a party, where service of hearing notice is required by law and necessary, would rob the Court of its jurisdiction to hear and determine a cause or matter. Thus, any Order made by a Court against a party in the absence of service of hearing notice on a party, who is entitled to service of hearing notice, is null and void. The failure to serve hearing notice, where it ought to be served on a party to a pending proceedings, goes to the root of the jurisdiction of the Court. See Section 36 of the Constitution of Nigeria 1999 (as amended). See also Ezim V Menakaya (2018) 9 NWLR (Pt. 1623) 113 @ pp. 126 – 127; ENL Consortium Ltd V SS Nig Ltd (2018) 11 NWLR (Pt. 1630) 315@ p. 326.

My lords, the law is and has always been that a failure by a Court to observe the right to fair hearing of a party in the litigation process vitiates both the proceedings and judgment of the Court whose proceedings is affected by the deadly incurable and highly contagious virus of lack of or denial of fair hearing, notwithstanding the merit or otherwise of the cases of the parties or indeed how meticulous the proceedings were or even how sound the judgment was on the merit. Once the right to fair hearing is breached, all the proceedings and or judgment or decisions are all a nullity. But, the issue of fair hearing must at all times, in any proceedings in which it is raised, be raised with all seriousness and bone fide and not mala fide or merely intended to raise a storm in a tea cup without any real factual basis. See Agbogu V. Adichie (2003) 2 NWLR (Pt. 805) 509 @ p. 531. See also Agbapuonwu V. Agbapuonwu (1991) 1 NWLR (PT. 165) 33 @ p.40; Adebesin V. The State (2014) 9 NWLR (pt. 1413) 609 @ pp. 641 – 642; Victoria Shola V. Ezediashi Ofili (2020) LPELR – 51986 (CA). – Per B. A. Georgewill, JCA

FAIR HEARING – CONDUCT OF COURTS TO ISSUES OF FAIR HEARING – WHERE THE RIGHT TO FAIR HEARING HAS BEEN BREACHED

In law, a proceeding in which one of the twin pillars of natural justice, audi alterem patten – let the other party be heard- was brazenly breached by the lower Court cannot be said to have been a fair proceeding at all! The Appellant was denied a fair hearing on by the lower Court on 29/11/2019, which rendered both the hearing conducted on 29/11/2019 as well as the judgment delivered on 19/2/2020 nullity upon nullity, being in denial of the Appellant’s right to fair hearing as Constitutionally guaranteed to it, and are therefore, liable to be set aside. See P. N. Emerah & Sons Nig. Ltd. V. Dunu 1998) 9 NWLR (Pt. 564) 96, where it was held inter alia thus:

“Where the failure of a party in a case to appear in Court is due to the failure to serve him a notice of hearing, any judgment given in that circumstance will be one given without jurisdiction and it is liable to be set aside on appeal… It is a judgment entered without jurisdiction and it is therefore, a nullity”.

My lords, the right to fair hearing is a Constitutional right intended by the framers of the Constitution for the safeguard of the citizen from being condemned or adjudged liable without being heard. It is so fundamental in law that the effect of its breach, as has been so profoundly pronounced upon by the Courts in a plethora of decided cases as are replete in the law reports, would almost invariably render such proceedings and resultant judgment a nullity. See Ekpenetu V. Ofegobi (2012) 15 NWLR (Pt.1323) 276. See also Amadi V. INEC (2013) 4 NWLR (Pt.1345) 595; Ovunwo & Anor. V. Woko & Ors (2011) 17 NWLR (Pt. 1277) 522; Pan African Incorporation & Ors. V. Shoreline Lifeboat Ltd & Anor (2010) All FWLR (Pt. 524) 56; Action Congress of Nigeria V. Sule Lamido & Ors (2012) 8 NWLR (Pt.1303) 560 @ p.593; Judicial Service Commission of Cross River State & Anor V. Dr. (Mrs) Asari Young (2013) 11 NWLR (Pt.1364) 1. It is a travesty of justice for a Court not to properly and dispassionately hold the balance of justice between the two extremes of rushing or crushing justice. The most important thing is that at all times in proceedings before the Courts the enshrined constitutionally guaranteed rights of the citizen to fair hearing, to be fairly heard, before decision affecting his civil rights and obligations is reached, must be faithfully observed by the Courts. The right to be heard and for substantial justice to be done to the parties by the Courts cannot be sacrificed at the altar of speed! See Section 36(1) of the Constitution of Nigeria 1999 (as amended) which provides as follows:

“In the determination of his civil rights and obligation, including any question or determination by or against any Government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.”

See also Abubakar V. Yar’ Adua (2008) 4 NWLR (Pt. 1078) 468: p. 503, where the Supreme Court had stated inter alia as follows:

“…Courts of law cannot sacrifice the constitutional principle of fair hearing at the altar of speedy hearing of cases when the content of the speedy hearing is not in consonance with fair hearing…. Although the law is that speedy hearing is one vital and important aspect of fair hearing, speedy hearing of a case which denies a party access to pre-trial evidence, such as interrogatories, is not fair as it turns contrary to the Constitutional principle of fair hearing. In the instant case, the Court of Appeal was wrong in rejecting the application to administer interrogatories on the ground that it would impede speedy trial of the case.”

I reiterate it, even if for the umpteenth time, that the right to fair hearing is not a cosmetic right but a fundamental one and must be scrupulously observed by the Courts. Though, and truly so, justice delayed is justice denied, yet justice rushed is justice crushed and in both extreme circumstances, it is the lack of proper balancing by the Court that leads to the injury. Thus, a Court should neither be too slow nor be too fast as being in haste. It must be patient and painstaking while hearing and deciding the rights, obligations and liabilities of the parties before it by scrupulously observing the right to fair hearing of all the parties before it. In law, once the right to fair hearing is breached, the issue of the merit or otherwise or even the correctness and soundness of the judgment pales into insignificance in the resultant nullity of the judgment reached in breach of a party’s right to fair hearing.

See Ejeka V. State (2003) 7 NWLR (Pt. 819) 408, where the Supreme Court per Niki Tobi JSC,(God bless his soul) had stated inter alia thus:

“The principle of fair hearing is breached where parties are not given equal opportunity to be heard in the case before the Court. Where the case presented by one party is not adequately considered, the affected party can complain that he was denied fair hearing.”

See also Ekpenetu V. Ofegobi (2012) 15 NWLR (Pt. 1323) 276; Amadi V. INEC (2013) 4 NWLR (Pt. 1345) 595; Newswatch Communications Limited V. Alhaji Ibrahim Attah (2006) 12 NWLR (Pt. 993) 144; Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528 (CA) per Georgewill JCA; Shekete V. NAF (2007) 14 NWLR (Pt. 1053) 159 @ p. 190; Ukwuyok V. Ogbulu (2010) 5 NWLR (Pt. 1187) 316 @ p. 346. – Per B. A. Georgewill, JCA

RIGHT TO PERSONAL LIBERTY – WHERE THE BREACH OF RIGHT TO PERSONAL LIBERTY IS BREACHED – WHETHER THE RIGHT TO PERSONAL LIBERTY IS ABSOLUTE

…the law is that an infringement or threatened or likely infringement of the right to personal liberty of the citizen, unless lawfully justified, is not only enforceable but would, if proved, amount to an unconstitutional act or omission for which a citizen whose right to personal liberty is so infringed upon or threatened to be infringed or is likely to be infringed is entitled to the protection of the law by way of a grant of his reliefs claimed for such actions or omissions against the offending party. See Fawehinmi V. IGP (2002) 7 NWLR (Pt. 767) 606. See also Nwafor V. EFCC (2021) LPELR – 52949(CA) per Sir Biobele Abraham Georgewill JCA. However, the right to personal liberty, like it is with every other right, including the right to life, the most sacrosanct right of all to the human being, is not absolute and can as permitted by law be derogated from. Thus, in all or any of the circumstances spelt out in Sub-section (C) of Section 35(1) of the Constitution of Nigeria 1999 (as amended), the right to personal liberty of the citizen may justifiably and lawfully be derogated from. See Alhaji Aliyu N. Salihu V. Suleiman Umar Gana & Ors (2014) LPELR – 203069 (CA). See also Nwafor V. EFCC (2021) LPELR – 52949(CA) per Sir Biobele Abraham Georgewill JCA. – Per B. A. Georgewill, JCA

ARREST AND DETENTION – WHETHER ARREST AND DETENTION ARE PART OF THE INVESTIGATIVE DUTIES OF THE POLICE – CONDUCT OF THE POLICE IN CARRYING OUT INVESTIGATIONS

Their arrest and detention was, in my finding and I so firmly hold, a result of the investigative activities of the 4th- 7th Respondents in respect of alleged serious crime of armed robbery leading to the unfortunate death of a security guard. No Police Force, the world over, including Nigeria, would treat such matter with levity if the society is to remain secured and peaceful for legitimate activities of the citizenry to take place. See Sections 214, 215 and 216 of the Constitution of Nigeria, 1999 (as Amended); Section 4 of The Police Act 2020 LFN; Section 18 of the Administration of Criminal Justice Act, Nasarawa State 2019. See Also Onah V. Okenwa (2010) 7 NWLR (Pt. 1194)512 @ p. 517.

I think I need to reiterate, in law, every Nigerian citizen has a duty to report a suspected criminal offence to the Police for investigation and prosecution, if the Police so decide at the conclusion of their investigation. It is also very important to note that arrest and/or detention by the Police is part and parcel of the investigation processes. However, the only caveat, and which the Courts always insist on, is that before an arrest and/or detention is carried out, there should be some form of discreet or preliminary investigation or processing to see if there be some prima facie evidence of the commission of the alleged offence. This will obviate the practice whereby citizens are arrested first even before there is any evidence suggesting at least prima facie the commission of the alleged offence, save where the person is caught in action real time while committing the alleged offence. See Chief Sunday Effiong V. Essien & Ors (2015) 5 NWLR (Pt. 1451) 83. – Per B. A. Georgewill, JCA

COURTS – CONDUCT OF COURTS TO THE ACTIVITIES OF THE POLICE IN CARRYING OUT THEIR DUTIES

It is true, and the Courts, including this Court and the Supreme Court, have not shied away from categorically so stating, that any citizen of this country, no matter his pedigree or societal standing, who deliberately or intentionally sets out to commit a crime or contravene the criminal laws of the land, should equally be prepared to face the rhythm of our criminal justice system, and in such cases of proven infractions, the Court would not be a place of refuge for such a person to evade the course of the criminal justice system. My lords, the Courts do not therefore make it a habit to interfere with or stop the Police from carrying out their duty as conferred on them by law except in very clear cases of breach of the enshrined fundamental rights of the Citizens. See Section 35(1)(c) of the Constitution of Nigeria 1999 (as amended). See also Section 4 of the Police Act 2020. See further Mallam Abdullahi Hassan &Ors V. Economic and Financial Crimes Commission & Ors (2014) 1 NWLR (Pt. 1389) 607 @ pp. 632 – 633; Dokubo-Asari V. FRN (2007) 12 NWLR ((Pt. 1048) 320 @ p. 360. – Per B. A. Georgewill, JCA

LIABILITY – WHETHER A PRIVATE CITIZEN WHO NAMES SUSPECTS IN HIS REPORT TO THE POLICE WOULD BE HELD LIABLE FOR THEIR ARREST AND DETENTION IF IT TURNS OUT TO BE UNLAWFUL

It follows therefore, and I so further hold, that the finding of liability against the Appellant for the arrest and detention of the 1st and 2nd Respondents by the lower Court was wrong, since even if the arrest and or detention turns out to be unlawful, it is not shown that the Appellant played any positive or active role or instigated their arrest and detention. It is a grave error. It is perverse as it is not supported by the proved facts as in the evidence before the lower Court. This is so because in law even where a private citizen in his report to the Police had merely named or indicated a suspect to the Police, it would still make no difference! See Ugochukwu Duruaku & Anor v. Sir Gilbert Naloke (2015) 15 NWLR (Pt.1483) 417 @ p. 477. See also Ejeofor V. Okeke (2000) 7 NWLR (Pt. 665) 363 @ pp. 379 – 380; Onyedinma V. Nnite (1997) 3 NWLR (Pt. 493) 333 @ p. 345; Adefunmilayo V. Oduntan (1958) WNLR 31; Gbajor V. Ogungburegui (1961) 1 All WLR 853. – Per B. A. Georgewill, JCA

SERVICE – WHERE THERE IS NO SERVICE OF AN ORIGINATING PROCESS – IMPORTANCE OF JURISDICTION IN ADJUDICATION

In law, where there is no service at all of an originating process on a Party, the issue of whether service of such an originating process was proper or not would no longer arise. There would therefore, be nothing more to necessitate any further consideration of whether or not there was proper service of the 1st and 2nd Respondents’ Application filed on 3/9/2019 outside jurisdiction of the lower Court on the Appellant.

I have already held that the judgment of the lower Court was a nullity, having been reached both in breach of the Appellant’s constitutionally guaranteed right to fair hearing and in want of jurisdiction as well as lack of merit in the claims of the 1st and 2nd Respondents against the Appellant. In law, jurisdiction is the life wire and the very soul of every cause or matter before the Courts. A Court is therefore, competent only and only when all the conditions precedent to the exercise of the Court’s jurisdiction have been fulfilled. See Madukolu V. Nkemdilim (1962) All NLR 581; Onuorah V. Kaduna PRC Ltd (2005) All FWLR (Pt. 256) 1. See also Petro Jessica Ltd. V. Leventis Trading Co. Ltd. (1992) 5 NWLR (Pt. 244) 693. – Per B. A. Georgewill, JCA

ACADEMIC ISSUES – CONDUCT OF COURTS TO ACADEMIC ISSUES – MEANING OF AN ACADEMIC ISSUE

Thus, having therefore, firmly held that the 1st Respondent’s Suit was incompetent and thereby robbed the lower Court of its competence and jurisdiction, issues two and three for determination have become merely academic, and no longer fit for resolution one way or the other in this judgment, and I so firmly hold, as doing so would clearly amount to nothing but sheer waste of the very precious and, if I may say scarce, judicial time. In Global Fleet Oil & Gas Ltd V. Allen (2021) LPELR – 54583(CA), this Court had per Sir Biobele Abraham Georgewill JCA, had cause to reiterate inter alia thus:

“Courts of law are loath to spend their precious and scarce judicial time considering and resolving merely academic questions in its judgment, which are better left for scholars in the Faculties of Law in our Universities to grapple with. An issue becomes merely academic once it is no longer of any utilitarian value to the determination of the appeal one way or the other.”

See Charles Oke & Anor V. Dr. Rahman Mimiko &Ors(2013) All FWLR (Pt. 693) 1853; Uba Plc. V. Dana Drugs Ltd (2018) LPELR -44103 (CA), per Sir Biobele Abraham Georgewill JCA; Action Congress V. INEC (2007) LPELR – 8988 (CA);Mbachu V. Anambra – Imo Rivers Basin Development Authority, Owerri (2006) All FWLR (Pt. 342) 1482 @ p 1497; Adeogun V. Fashogbon (2008) 17 NWLR (Part 1115) 149 @ p. 180. – Per B. A. Georgewill, JCA

GARNISHEE PROCEEDING – THE PROCEDURE IN A GARNISHEE PROCEEDING AT THE EX-PARTE STAGE – THE PROPER ORDER A TRIAL COURT IS ALLOWED TO MAKE UPON GRANTING MOTION EX-PARTE IN A GARNISHEE PROCEEDING

In law, upon a Motion Ex – parte in a garnishee proceeding being heard by a trial Court, the proper Order to make on granting is a Garnishee Order Nisi and then directing the Garnishee to show cause, failing which at the return date the Order Nisi may be made absolute. Thus, it would be improper for a trial Court to make a Garnishee Order Nisi and directing it to become absolute after 14 days. It would also be wrong for a trial Court to award Cost of Garnishee proceedings upon granting a Motion Ex – parte for Garnishee Order Nisi even before the return date for the Garnishee to show cause, and before the conclusion of the Garnishee proceedings when in law Cost would follow the event. See Section 86 of the Sheriffs and Civil Process Act, which provides as follows:

“If the Garnishee does not within the prescribed time pay into Court the amount due from him to the judgment debtor, or an amount equal to the judgment debt, together with the cost of the garnishee proceedings, and does not dispute the debt due or claimed to be due from such debtor, or if he does not appear upon summons, the Court upon proof of service may order execution to issue, and it may issue accordingly without any previous writ or process, to levy the amount due from such garnishee, or so much thereof as may be sufficient to satisfy the judgment or order, together with the cost of the Garnishee proceedings.”

From the succinct provision above, it does appear to me that under Garnishee proceedings, the role or duty of the Court on the return date after the issuance of the Garnishee Order Nisi is clearly cut out for it by law. Where a Garnishee, who has been duly served with the Garnishee Order Nisi fails to file an affidavit to show cause why a Garnishee Order Nisi should not be made absolute, the only option open to the Court, and if so asked for by the Judgment Creditor or his counsel, is to proceed and make the Garnishee Order Nisi Absolute. I have added the words, if so asked for, advisedly since a Judgment Creditor reserves, in my view, the right to exercise his right to ask for the Garnishee Order Nisi to be made Absolute and can even apply to withdraw the entire Garnishee proceedings on the return date. It follows therefore, a Garnishee Order Nisi directed to become absolute in 14 days even before giving a return date for the Garnishee to show cause would be categorized as one made without jurisdiction and in breach of the right to fair hearing of the Garnishee. So, also an Order for Cost made even before the return date for the Garnishee to show cause would be improper as their no event yet for Cost to follow as required by law. See Ama Real Estate Ltd. V. Heritage Bank Plc (2022) LPELR – 57046 (CA) per Sir Biobele Abraham Georgewill JCA. See also Apeh V. PDP (2016) 7 NWLR (Pt. 1510) 153 @ p. 177. See also FBN Plc. V. TSA Ind Ltd (2010) 15 NWLR (Pt. 1216) 247 @ p. 309; Mark V Eke (2004) 5 NWLR (Pt. 865) 54 @ pp. 79 – 80; Ezim V Menakaya (2018) 9 NWLR (Pt. 1623) 113 @ pp. 126 – 127; ENL Consortium Ltd V SS Nig Ltd (2018) 11 NWLR (Pt. 1630) 315 @ p. 326. – Per B. A. Georgewill, JCA

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Court of Appeal Rules 2021
3. African Charter on Human and People Right (Ratification and Enforcement) Act Cap 10 Law of the Federation of Nigeria, 1990
4. Police Act 2020 LFN
5. Administration of Criminal Justice Act, Nasarawa State 2019
   

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