LEGALPEDIA ELECTRONIC CITATION:LERCA/K/377/2017
AREAS OF LAW:
APPEAL, COURT, FAIR HEARING, GARNISHEE PROCEEDINGS, JUDGMENT AND ORDER, PRACTICE AND PROCEDURE
SUMMARY OF FACTS:
One Alhaji Yau Deba, client to the Respondent, a lawyer, sold a property situate at Afaka Mondo, Kaduna, to one Michael Negedu, an innocent purchaser, (who later died), for the sum of N1.5m (One Million Five Hundred Thousand Naira) only. Later on, the deceased’s son, Paul Michael Negedu, reported the Respondent to the police for breach of trust and cheating. Subsequently, the Respondent’s son refunded the said sum to Paul Michael Negedu which led to the latter’s withdrawal of his complaint to the police. Hence the Respondent filed an action at the trial court for the enforcement of his fundamental rights against the Inspector General of Police, Commissioner of Police, Kaduna State and Paul Michael Negedu and claimed, inter alia, for a refund of the said sum of N1.5m (One Million Five Hundred Thousand Naira) only, alleged to have been unlawfully received from the Respondent’s son. In a considered ruling, the lower court granted his prayers. Following that, the Respondent, on 8th August, 2016, commenced garnishee proceedings, before the lower court, against the Appellant inclusive of the judgment debtors as parties. The lower court granted the ex parte application and made an order nisi against the Appellant which later was made absolute. The Appellant then applied to the lower court to have the order nisi and absolute set aside, and to stay execution of the latter, but same was dismissed for lack of necessary parties. Dissatisfied, the Appellant has appealed to this court seeking the court to set aside the decision of the lower court and uphold the relief sought by the Appellant before the lower court, as it lacked the jurisdiction to issue the orders nisi and absolute for want of fulfillment of the condition precedent.
ISSUES FOR DETERMINATION:
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 traces its paternity to 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 partem- 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.
COURT- DUTY OF COURTS TO CONSIDER AND PRONOUNCE ON ALL ISSUES BEFORE IT
“It is a long settled hallowed principle of law, that a court, save the Supreme Court, has a bounden duty to consider and pronounce on all the issues presented before it, Egharevba v. FRN (2016) 10 NWLR (Pt. 1512) 431; Okafor v. Abumofuani (2016) 12 NWLR (Pt. 1525) 117; MTN (Nig.) Comm. Ltd v. Harison (2017) 18 NWLR. As a matter of law, where a court, below the apex court, reaches a finding that it is derobed of the jurisdiction to entertain an action, the law, in order to conserve the scarce juridical time and costs, still commands it to make/showcase its opinion on other issues for the benefit of the appellate court, see Ada v. NYSC (2004) 13 NWLR (Pt. 891) 639; Tanko v. UBA Plc (2010) 17 NWLR (Pt. 1221) 80; Obiuweubi v. CBN (2010) 17 NWLR (Pt. 1247) 465; Stowe v. Benstowe (2012) 9 NWLR (Pt. 1306) 450; Elelu-Habeeb v. A. –G., Fed. (2012) 13 NWLR (Pt. 1318) 423; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175.” PER O. F. OGBUINYA, J.C.A.
RIGHT TO FAIR HEARING – EFFECT OF A PROOF OF AN INFRACTION OF THE RIGHT TO FAIR HEARING
“In the light of this brief juridical survey, it is my humble view that the lower court’s failure/neglect to treat the appellant’s singular issue, submitted to it for determination, is a serious fracture of the appellant’s inviolate right to fair hearing as ingrained in section 36 (1) of the Constitution, as amended. My view point is solidified by the case-law in that: “No. matter how trivial or irrelevant a submission of counsel may appear, the trial Judge has a duty to examine it and rule on it,” see Odunukwe v. Ofomata (2010) 18 NWLR (Pt. 1225) 404; Aba v. Monday (2015) 14 NWLR (Pt. 1480) 569. The denial robbed the appellant the adequate chance to present its case in the temple of justice of the lower court on the footing of the inelastic principle of audi aiteram partem, see S & D Const. Co. Ltd. v. Ayoku (supra). 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 its case before the lower court. It stems from the foregoing, that the appellant has discharged the onus probandi to prove denial of fair hearing which the law has saddled on it, 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 it incurred consequent upon the infringement 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 curtailment 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 (supra).” 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 justitiae 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; 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.
STATUTES REFERRED TO:
Constitution of the Federal Republic of Nigeria, 1999 as amended
Legal Practitioners Act, Cap 11, Revised Edition (Laws of the Federation of Nigeria) Act, 2004.
Rules of Professional Conduct