LEGALPEDIA ELECTRONIC CITATION:LER[2018]CA/K/280/2015

AREAS OF LAW:

APPEAL, CONSTITUTIONAL LAW, COURT, FAIR HEARING, GARNISHEE PROCEEDINGS, JUDGMENT AND ORDER, JURISDICTION, PRACTICE AND PROCEDURE, WORDS AND PHRASES

SUMMARY OF FACTS:

Before the lower court, the appellant, the 1^st and 2^nd Respondents and 3^rd Respondent were the Judgment Creditor/Applicant/Garnishor, the judgment debtors and garnishee respectively. On 5th July, 2002, the Appellant obtained judgment against the 1^st and 2^nd Respondents in the sum of N17, 189, 018.89(Seventeen Million, One Hundred and Eighty Nine Thousand, Eighteen Naira, Eighty Nine Kobo) from the High Court of Kano State. In order to enforce the judgment, the Appellant beseeched the lower court through garnishee proceedings, and tabled against the Respondents the following reliefs; a Garnishee Order Nisi attaching the monies of the Judgment Debtors in the hand of the Garnishee or so much as may be sufficient to satisfy the Judgment Debt of Seventeen Million, One Hundred and Eighty Nine Thousand, and Eighteen Naira and Eighty Nine Kobo, (N17, 189, 018.89). The lower court granted the prayers. The 1^st and 2^nd Respondents, the judgment debtors, filed a counter affidavit against the proceeding, and same was not challenged by the garnishee and the third Respondent. The Appellant, the garnishor, challenged the competence of the 1^st and 2^nd Respondents’ counter-affidavit and their right of audience in the proceeding. After hearing the arguments for and against the objection, the lower court set aside the garnishee order nisi. Dissatisfied, the Appellant has filed this appeal contending a denial of fair hearing by the court wherein it raised an issue suo motu without affording parties the opportunity to address it.

HELD:

Appeal Allowed

ISSUE FOR DETERMINATION:

• Whether or not the trial judge is right to raise an issue suo motu which is not in contemplation of the parties, and proceeded to decide on same without hearing the parties

RATIONES:

ISSUE OF JURISDICTION – DUTY OF COURTS ON THE ISSUE OF JURISDICTION

“The law compels the court to accord prime attention to issue of jurisdiction where it germinates from any proceeding, see SPDC Ltd. v. Amadi (2011) 14 NWLR (Pt. 1266) 157; Okwu v. Umeh (2016) NWLR (Pt. 1501) 120;Brittania-U (Nig.) Ltd. v. Seplat Pet. Co. Dev. Ltd. (2016) 4 NWLR (Pt. 1503) 541; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu(2016) 9 NWLR (Pt. 1517) 193”. PER O. F. OGBUINYA, J.C.A.

ISSUES RAISED SUO MOTU- EXCEPTIONS TO THE RULE THAT PARTIES MUST ADDRESS THE COURT ON ISSUES RAISED SUO MOTU

“Indisputably, the law, seriously, frowns on a court raising an issue suo motu, on its own motion, and deciding same without input from the parties.  Such an untoward judicial exercise will drag the court into the arena of conflict as well as impinge on the inviolable rights of parties to fair hearing as entrenched in section 36 (1) of the Constitution, as amended, see INEC v. Ogbadibo LG (2016) 3 NWLR (Pt. 1498) 167; Gwede v. INEC (2014) 18 NWLR (Pt. 1438) 56; Egbuchu v. Continental Merchant Bank Plc. (2016) 8 NWLR (Pt. 1513) 192; Adedayo v. PDP (2013) 17 NWLR (Pt. 1382) 1; Odedo v. Oguebego (2015) 13 NWLR (Pt. 1476) 229; Mainstreet Bank Ltd. v. Binna (2016) 12 NWLR (Pt. 1526) 316 Mabamijie v. Otto (2016) 13 NWLR (Pt. 1529) 171. However, it is not an inflexible rule.  It admits of certain exceptions. The need for address by parties becomes unnecessary when: “(a) the issue relates to the courts own jurisdiction; (b) both parties are/were not aware or ignore a statute which may have bearing on the case…. (c) … on the face of the record serious questions of the fairness of the proceedings is evident,” see Omokuwajo v. FRN (2013) 9 NWLR (Pt. 1359) 300 at 332, per Rhodes – Vivour, JSC. See also, Aderibigbe v. Abidoye (2000) 10 NWLR (Pt. 1150) 592; Effiom v. C. R. S. I. E. C. (2010) 14 NWLR (Pt. 1213) 106; Gbagbarigha v. Toruemi (2013) 6 NWLR (pt. 1350) 289.” PER O. F. OGBUINYA, J.C.A.

FAIR HEARING – MEANING OF FAIR HEARING

“Fair hearing connotes a trial which is conducted in accordance with all the legal rules formulated to ensure that justice is done/dished out to parties to the cause, see Eze c. FRN (2017) 15 NWLR (Pt. 1589) 433; Ardo v. INEC (2017) 13 NWLR (Pt. 1583) 450; Regt. Trustees, P.C.N. v. Etim (2017) 13 NWLR (Pt. 1581) 1.” PER O. F. OGBUINYA, J.C.A.

FAIR HEARING – CONCEPT OF FAIR HEARING

“The ancient concept of fair hearing derives it root from divinity.  It was a common law doctrine which has metamorphosed into the corpus of our jurisprudence and, firmly, entrenched in section 36(1) of the Constitution, as amended.  It donates to the citizens the inviolable right to ventilate their grievances on the altar of the twin concrete pillars of natural justice to wit: audi alteram parterm-hear the other side and nemo judex in causa sua – no one should be a judge in his own case.  The whole essence of fair hearing, which is coterminous with fair trial, connotes giving parties to any proceedings, be it judicial or administrative, an equal opportunity to present their cases.  It follows, that fair hearing is, totally, divorced from correctness of a decision.  It centres on the cardinal principle that a fair-minded person who watched the proceedings, before a court or administrative or quasi judicial body, should conclude that it exhibited even handedness/fairness in apportioning justice to the feuding parties,  see O.O.M.F. Ltd. v. NACB (2008) 12 NWLR (Pt. 1098) 412;Nwanegbo v. Olawole(2011) 37 WRN 101; Kim v. State (1992) 4 NWLR (Pt. 233) 17;Newswatch Comm. Ltd. v. Atta (2006) 12 NWLR (Pt. 993) 144;FRN v. Akabueze(2010) 17 NWLR (Pt. 1223) 525; S & D Const. Co. Ltd. v. Ayoku(2011) 13 NWLR (Pt. 1265) 487;Ovunwo v. Woko(2011) 17 NWLR (Pt. 1277) 522; Nigeria Navy v. Labinjo(2012) 17 NWLR (Pt. 1328) 56; J.S.C., Cross River State v. Young (2013) 11 NWLR (Pt. 1364)1;Mpama v. FBN Plc(supra); Aba v. Monday (2015)14 NWLR (Pt. 1480) 569; Gov., Zamfara State v. Gyalange(2013) 8 NWLR (Pt. 1357) 462;Achuzia v. Ogbomah(2016) 11 NWLR (Pt. 1522) 59;Danladi v. Dangari(2015)2 NWLR (Pt. 1442)124; Labour Party v. Bello (2017) 2 NWLR (Pt. 1548) 148; Darma v. Ecobank (Nig.) Ltd. (2017) 9 NWLR (Pt. 1571) 480”. PER O. F. OGBUINYA, J.C.A.

RIGHT TO FAIR HEARING – WHETHER AN APPELLANT NEEDS TO PROVE THE DAMAGES INCURRED CONSEQUENT UPON A BREACH OF THE RIGHT TO FAIR HEARING

“Even “The laws of God and man both gave the man the opportunity to make his defence if he has any”, see R.V. Chancellor of Cambridge (1723) 1 Str. 557 at 567, per Fortescue, J.;Oyeyemi v. Commissioner for LG., Kwara State (1992) 2 NWLR (Pt. 226) 661;Achuzia v. Ogbomah(2016) 11 NWLR (Pt. 1522) 596.  The law donates to the appellant the unbridled licence to present his case before the lower court. The denial curtailed his right, qua counsel, to address the court, see Mpama v. FBN Plc (2013)5 NWLR (Pt. 1346) 176;Achuzia v. Ogbomah(supra).  These, inter alia, are quintessential instances of violation of the appellant’s inalienable right to fair hearing as enshrined in section 36(1) of the Constitution, as amended.  Put simply, the appellant has discharged the burden to prove denial of fair hearing which the law has saddled on him, see Maikyo v. Itolo(2007)7 NWLR (Pt. 1034) 443; S & D Const. Co. Ltd. v. Ayoku(supra).  The appellant needed not to prove the damages or losses he incurred consequent upon the breach of its right to fair hearing, see Oshiomhole v. Airhiavbere (2013)7 NWLR (Pt. 1353) 376. A proof of infraction of fair hearing carries with it a miscarriage of justice.  Put differently, a miscarriage of justice is inherent in a breach of a right to fair hearing, see Mpama v. FBN Plc(supra); Eze v. Unijos (2017) 17 NWLR (Pt. 1593) 1”. PER O. F. OGBUINYA, J.C.A.

RIGHT TO FAIR HEARING – IMPLICATION OF FLOUTING A PARTY’S RIGHT TO FAIR HEARING

“Where a party’s inviolate right to fair hearing is flouted, as in this case, no matter the quantum of fair-mindedness, dexterity, artistry and objectivity injected in the proceeding hosting the breach, it will be mired in a nullity, see Nyeson v. Peterside (2016) 7 NWLR (Pt. 1512) 452; C. K & W. M. C. Ltd v. Akingbade (2016) 14 NWLR (Pt. 1533) 487; Eze v. Unijos (supra); Ezenwaji v. U.N.N. (2017) 18 NWLR (Pt. 1598) 485; Poroye v. Makarfi (2018) 1 NWLR (Pt. 1599) 91; APC v. Nduul (2018) 2 NWLR (Pt. 1602) 1. This is a confluence point where want of fair hearing and jurisdiction embrace themselves to vitiate proceedings that parent denial of fair hearing, see O.O.M.F. Ltd. v. NACB Ltd. (supra); Ovunwo v. Woko (supra); Achuzia v. Ogbomah (supra); Apeh v. PDP (2016) 7 NWLR (Pt. 1510) 153; Aba v. Monday (2015) 14 NWLR (Pt. 1480)569.” PER O. F. OGBUINYA, J.C.A.

“NULLITY” – WHAT DOES “NULLITY” DENOTE IN LAW?

“In the eyes of the law, nullity denotes: “Nothing; no proceeding; an act or proceeding in a case which the opposite party may treat as though it had not taken place; or which has absolutely no legal force or effect”, see Lasisi v. State (2013) 12 NWLR (Pt. 1367) 133 at 146, per Ngwuta JSC; Ezenwaji v. U.N.N. (supra); Mamman v. Hajo (2016) 8 NWLR (Pt. 1575) 411.” PER O. F. OGBUINYA, J.C.A.

DECISION OF COURT – CONSEQUENCE OF A DECISION OF COURT THAT IS A NULLITY

“The dire consequence of a nullity is far-reaching.  If a decision or proceeding is infested with nullity, it is void and taken as if it was never given or made, see Okoye v. Nigeria Const. &Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501; Bello v. INEC (2010) 8 NWLR (Pt. 1196) 342. Moreover, such a decision or proceeding, in the view of the law, bestows no enforceable right on its beneficiary party who possesses it nor does it impose any obligations on its victim party, see Ajibola v. Ishola(2006) 13 NWLR (Pt. 998) 628;Oyeneyin v. Akinkugbe(2010) 4 NWLR (Pt. 1184) 265. The bounden duty of a court is to set aside a null order ex debito justiae in that it does not exist in law, see Mamman v. Hajo (supra); N. A. C. B. Ltd. v. Ozoemelam (2016) 9 NWLR (Pt. 1517) 376; Oyeyemi v. Owoeye (2017) 12 NWLR (Pt. 1580) 364” PER O. F. OGBUINYA, J.C.A.

ORDER OF COURT – APPROPRIATE ORDER TO BE MADE BY COURT WHERE THERE IS A DENIAL OF FAIR HEARING

“It is settled that: “once there is such a denial of the said right [right to fair hearing] the only order that could be made on appeal is one for re-trial or re-hearing. This is to enable the appellant to be properly heard,” see Kalu v. State (2017) 14 NWLR (Pt. 1586) 522 at 547, per Nweze, JSC; RB Danladi v. Dangiri (2015) 2 NWLR (Pt. 1442) 124; C.K. &W.M.C. Ltd. v. Akingbade (supra).” PER O. F. OGBUINYA, J.C.A.

RETRIAL ORDER – EXTENT OF THE POWERS OF AN APPELLATE COURT WHEN RE-HEARING A CASE

“Moreover, once an appellate court intends to order, or orders, for a re-hearing, the law forbids it form treating any other issues in the appeal or points that may arise at the rehearing proceedings, see C.K. &W.M.C.. Ltd. v. Akingbade (supra); Ovunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522.” PER O. F. OGBUINYA, J.C.A.

FAIR HEARING – MEANING OF FAIR HEARING UNDER SECTION 36(1) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA

For emphasis I must add that fair hearing within the meaning of Section 36(1) of 1999 Constitution means a trial conducted according to all the legal Rules formulated to ensure that justice is done to the parties. It requires the observance of the twin pillars of the Rules of natural Justice namely audi alteram partem and nemo judex in causa sua. Eshenake v Gbinije (2006) 1 NWLR(Pt. 961) pg 228. PER U. I. NDUKWE-ANYANWU, J.C.A

BREACH OF FAIR HEARING – EFFECT OF A BREACH OF FAIR HEARING

“It is trite law that once there is a breach of fair hearing, the whole proceedings in the course of which the breach occurred and the decision arrived at by the court becomes a nullity. ANPP V INEC(2004)7 NWLR(Pt. 871)Pg. 16, All Peoples Party v Ogunsola(2002) 5NWLR(Pt. 761)Pg. 484, B.O.N. Ltd v Adegoke(2006) 10 NWLR(Pt. 983)Pg. 339”. PER U. I. NDUKWE-ANYANWU, J.C.A

STATUTES REFERRED TO:

Constitution of the Federal Republic of Nigeria, 1999 as amended

Sheriff and Civil Process Law of Kano State