CHUKWUEMEKA EZEUKO (ALIAS DR. REV. KING) V THE STATE
April 25, 2025EFCC V MRS OKOTIE ELIZABETH & ANOR
April 25, 2025Legalpedia Citation: (2016) Legalpedia (SC) 12044
In the Supreme Court of Nigeria
Fri Feb 26, 2016
Suit Number: LER[2016]SC.192/2003
CORAM
KUD1RAT MOTONMORI OLATOKUNBO KEKERE-EKUN JUSTICE, SUPREME COURT
PARTIES
CHIEF ISAAC EGBUCHU
APPELLANTS
1, CONTINENTAL MERCHANT BANK PLC
2. CM.B. HOMES LIMITED
3. NIGERIA DEPOSIT INSURANCE (Joined as Liquidator of Continental Merchant Bank Plc)
RESPONDENTS
AREA(S) OF LAW
APPEAL, COURT, ACTION, CONTRACT, PRACTICE AND PROCEDURE
SUMMARY OF FACTS
The Appellant who was appointed by the 1st Respondent as Manager Personnel and Administration in 1981 rose to the post of General Manager and was subsequently appointed as the Managing Director of the 2nd Respondent which was a subsidiary of the 1st Respondent. Consequent upon this appointment with the 2nd Respondent, the necessary statutory documents were filed at the Corporate Affairs Commission though he was still earning his previous salary pending the approval of his enhanced condition of service by the 2nd Respondent. Subsequently, the 1st Respondent by a letter terminated his appointment. The Appellant contended that the Respondents were liable to pay damages for breach of contract for non compliance with the Memorandum and Articles of Association and the Companies and Allied Matters Act. The Respondents on the other hand maintained that the Appellant was merely an employee of the 1st Respondent seconded to manage the 2nd Respondent and that he was never appointed as Managing Director of the 2nd Respondent and that his employment was lawfully terminated in accordance with the 1st Respondents conditions of service. The Appellant instituted an action in the High Court of Lagos State seeking declarative and injunctive reliefs. Alternatively, he sought the sum of N 7,051 588.80 (Seven Million, Fifty –One Thousand Five Hundred and Eighty-Eight Naira, Eighty Kobo) as damages for breach of contract. The Respondents counter claimed seeking an order compelling the Appellant to deliver vehicles, special and general damages. At the conclusion of the trial, the court entered judgement in favour of the Appellant in the sum of N5, 610,099.00 as damages for breach of contract and awarded the sum of N484, 909.00 in favour of the Respondents as total value of the official cars attached to the Plaintiff. Dissatisfied with the trial court’s decision, the Respondents appealed to the court below which affirmed the decision of the trial court to the effect that the Appellants employment was unlawfully terminated and that he was entitled to damages. The lower court further applied the provisions of Order 37 of the Lagos State High Court (Civil Procedure) Rules 1994 in exercise of its powers under section 16 of the Court of Appeal Act and made an order of non suit, hence this appeal.
HELD
Appeal Allowed
ISSUES
1. Whether the learned justices of the Court of Appeal were right in ordering a non-suit in this case when the parties and/or their counsel were never invited to address the court on the propriety or otherwise of such an order?
2. Whether in the circumstances of this case, the learned justices of the Court of Appeal were right when they held that the appellant had not proved his entitlement to the damages claimed ?
3. Whether the learned justices of the Court of Appeal were right in expunging Exhibit P.26 from the record when the admissibility of Exhibit P.26 was never a ground of appeal before the court and there was no prayer by the appellant (now respondent) requesting that Exhibit P.26 be expunged ?
RATIONES DECIDENDI
ORDER OF NON-SUIT – REQUIREMENT FOR MAKING AN ORDER OF NON-SUIT
“Contrary to the submission of learned counsel for the respondents, it has been firmly settled by decisions of this court that hearing parties before an order of non-suit is made is mandatory. In Adeleke Vs Raji (2002) 13 NWLR (pt. 783) 142 @ 154 A – C, Belgore, JSC (as he then was) in his concurring judgment stated thus: “Where a court finds some substance in entering [an] order of non-suit or strike out or retrial, it is important to hear the parties to address the court on the desirability of making such an order. To make any of the orders when not asked for by any of the parties, and the parties were not asked to address the court on such an order, injustice may result therefrom. It is for this reason and further reasons in the judgment of Ejiwunmi, JSC, that I allow the appeal and the cross-appeal. I order a re-hearing of the appeal before another panel.” (Emphasis mine)PER K.M.O KEKERE-EKUN, J.S.C
ORDER OF NON-SUIT – DUTY ON THE COURT TO EXERCISE ITS POWERS JUDICIOUSLY IN MAKING AN ORDER OF NON-SUIT
“The power to make the order is statutory and the Court, in the exercise of its discretion to make the order, is bound to act judiciously. See Mandilas & Karabenis v. Oridota (1972) 2 SC 47”. PER M. U.PETER-ODILI,J.S.C
CONSTITUTION – SUPREMACY OF THE CONSTITUTION
“It is trite law that the constitution of a country is the supreme law of the land and commands absolute obedience.” PER W.S.N. ONNOGHEN, J.S.C
ISSUE RAISED SUO MOTU – DUTY OF THE COURT WHEN IT RAISES AN ISSUE SUO MOTU
“I should not be understood as saying that a court is not empowered to raise an issue suo motu and base its decision thereon in any proceedings. What the law is saying is that where a court raises an issue suo motu, which issue is substantial and can determine the matter one way or the other, the court is duly bound, in the circumstances to hear counsel for the parties on the issue so raised suo motu before basing its decision thereon. Failure to do so will result in the decision being set aside for being a nullity as a result of breach of the right to fair hearing, particularly, the rule of audi alteram paterm. see Adeleke v Raji(2002) 13 NWLR (Pt. 783)142; Olusanya vs Olusanya 9(1983)1 SCNLR 134at 139; A-G. Leventis Nig. Plc v Akpu (2007)6 SC(Pt. 1)139 at 265etc.” PER W.S.N. ONNOGHEN, J.S.C
ORDER OF NON-SUIT – DUTY ON THE COURT TO EXERCISE ITS POWERS JUDICIOUSLY IN MAKING AN ORDER OF NON-SUIT
“The power to make the order is statutory and the Court, in the exercise of its discretion to make the order, is bound to act judiciously. See Mandilas & Karabenis v. Oridota (1972) 2 SC 47”. PER M. U.PETER-ODILI,J.S.C
CONSTITUTION – SUPREMACY OF THE CONSTITUTION
“It is trite law that the constitution of a country is the supreme law of the land and commands absolute obedience.” PER W.S.N. ONNOGHEN, J.S.C
RAISING AN ISSUE SUO MOTU – A COURT IS NOT ENTITLED TO RAISE AN ISSUE SUO MOTU WITHOUT AFFORDING PARTIES AN OPPORTUNITY TO BE HEARD
“Now, the law is settled that a court is not entitled to raise an issue suo motu and decide on it without affording the parties an opportunity to be heard. This is because in doing so the court is seen to leave its exalted position as impartial arbiter and descend into the arena of conflict. See; Kuti Vs Balogun (1978) 1 SC 53 @60 : Obawole Vs Williams (1996) 10 NWLR (Pt. 477) 146; Stirling Civil Eng (Nig.) Ltd Vs Yahaya(2005) 11 NWLR (Pt. 935) 181; Omokuwajo Vs F.R.N (2013) 9 NWLR ( Pt 1359) 300 Ominiyi Vs Alabi (2015) LPELR SC 41/2004. An appellate court is also not entitled to raise an issue not raised by either of the parties at the trial court or on appeal and base its decision thereon without affording the parties an opportunity to be heard.” PER K.M.O KEKERE-EKUN, J.S.C
RIGHT OF FAIR HEARING – EFFECT OF A BREACH OF FAIR HEARING IN PROCEEDINGS
“Also settled is the principle of law that where the right of fair hearing as breached in any proceeding, the said proceeding is liable to be declared a nullity by an appellate court.” PER W.S.N. ONNOGHEN, J.S.C
ORDER FOR NON-SUIT – EFFECT OF AN ORDER FOR NON-SUIT
“An order for non-suit is a final decision in the sense that it terminates the proceedings in which it is made. . See Omorogbe v. Lawani (1980) 3-4 SC 108. PER M. U.PETER-ODILI, J.S.C
ORDER OF NON-SUIT – REQUIREMENT FOR MAKING AN ORDER OF NON-SUIT
“Contrary to the submission of learned counsel for the respondents, it has been firmly settled by decisions of this court that hearing parties before an order of non-suit is made is mandatory. In Adeleke Vs Raji (2002) 13 NWLR (pt. 783) 142 @ 154 A – C, Belgore, JSC (as he then was) in his concurring judgment stated thus: “Where a court finds some substance in entering [an] order of non-suit or strike out or retrial, it is important to hear the parties to address the court on the desirability of making such an order. To make any of the orders when not asked for by any of the parties, and the parties were not asked to address the court on such an order, injustice may result therefrom. It is for this reason and further reasons in the judgment of Ejiwunmi, JSC, that I allow the appeal and the cross-appeal. I order a re-hearing of the appeal before another panel.” (Emphasis mine)PER K.M.O KEKERE-EKUN, J.S.C
ORDER FOR NON-SUIT – EFFECT OF AN ORDER FOR NON-SUIT
“An order for non-suit is a final decision in the sense that it terminates the proceedings in which it is made. . See Omorogbe v. Lawani (1980) 3-4 SC 108. PER M. U.PETER-ODILI, J.S.C
ISSUE RAISED SUO MOTU – DUTY OF THE COURT WHEN IT RAISES AN ISSUE SUO MOTU
“I should not be understood as saying that a court is not empowered to raise an issue suo motu and base its decision thereon in any proceedings. What the law is saying is that where a court raises an issue suo motu, which issue is substantial and can determine the matter one way or the other, the court is duly bound, in the circumstances to hear counsel for the parties on the issue so raised suo motu before basing its decision thereon. Failure to do so will result in the decision being set aside for being a nullity as a result of breach of the right to fair hearing, particularly, the rule of audi alteram paterm. see Adeleke v Raji(2002) 13 NWLR (Pt. 783)142; Olusanya vs Olusanya 9(1983)1 SCNLR 134at 139; A-G. Leventis Nig. Plc v Akpu (2007)6 SC(Pt. 1)139 at 265etc.” PER W.S.N. ONNOGHEN, J.S.C
FAIR HEARING- STATUS OF PROCEEDING CONDUCTED WITHOUT FAIR HEARING
“This is because the law is trite that any proceedings conducted without fair hearing amounts to a nullity and is bound to be set aside. See: Mfa & Anor. Vs Inongha (2014)1- 2 SC (Pt 1) 43 @ 72: Tsokwa Motors (Nig.)Ltd.Vs U.B.A. Plc. (2008) All FWLR (Pt.403) 1240 @ 1255 A – B; Adigun Vs A.G. Oyo state (1987) 1 NWLR (Pt.53) 674: Okafor Vs A.G. Anambra State (1991) 3 NWLR (Pt 200) 59: Leaders & Co. Ltd. Vs Bamaiyi (2010) 18 NWLR (Pt.1225) 329.” PER K.M.O KEKERE-EKUN, J.S.C
ORDER OF COURT – LIMIT ON THE EXERCISE OF THE POWERS OF THE COURT OF APPEAL UNDER SECTION 16 TO MAKE AN ORDER
“As rightly submitted by learned counsel for the appellant, in the exercise of its powers under Section 16 of the Court of Appeal Act, the Court of Appeal is only empowered to make an order, which the trial court is authorised to make. Thus, where the trial court lacks jurisdiction to entertain a cause or matter or to make a particular order, the Court of Appeal would equally lack jurisdiction to do so. Order 37 Rule 1 of the Civil Procedure Rules clearly enjoins the court to hear the parties on the propriety of making an order of non-suit’. PER K.M.O KEKERE-EKUN, J.S.C
ORDER OF COURT – LIMIT ON THE EXERCISE OF THE POWERS OF THE COURT OF APPEAL UNDER SECTION 16 TO MAKE AN ORDER
“As rightly submitted by learned counsel for the appellant, in the exercise of its powers under Section 16 of the Court of Appeal Act, the Court of Appeal is only empowered to make an order, which the trial court is authorised to make. Thus, where the trial court lacks jurisdiction to entertain a cause or matter or to make a particular order, the Court of Appeal would equally lack jurisdiction to do so. Order 37 Rule 1 of the Civil Procedure Rules clearly enjoins the court to hear the parties on the propriety of making an order of non-suit’. PER K.M.O KEKERE-EKUN, J.S.C
ORDER OF NON -SUIT – RATIONALE ON THE NEED FOR HEARING PARTIES BEFORE AN ORDER OF NON SUIT IS MADE
“The reason for the need to hear the parties before the order of non-suit is made in order that the right to fair hearing of the party as enshrined in Section 36 of the 1999 Constitution or Section 33 of the 1979 Constitution is not infringed upon. That is why this Court as the apex Court has again and again deprecated a situation where a court raises a matter or issue without calling on the parties or counsel on their behalf to address it on the matter. The implication of the failure to so have the counsel or parties address the court is well captured in the case of Afolabi v. Adekunle (1983) 3 SCNLR 141 at 148 per Aniagolu JSC and as follows:- “What the learned trial judge did by calling upon the parties to address him on what order to make dismissal or non-suit was merely to follow the advice of this Court in number of cases. Craig V Craig, 1967 NMLR 52, Bakare Elufisoye V Samuel Alabetutu 1968 NMLR 298 At 301, Mrs. Aigbe v Bishop John Edokpolor 1977 2 SC Page 1; Omoregbe v Lawani (1980) 3-4 SC 108 namely that where at the close of the hearing of a case, the trial Judge should think of entering a non-suit it is desirable that he should ask counsel for the parties for their submissions on the intended order. This is as it should be as has been pointed out in these cases, because the entry of an order for non-suit means that the plaintiff is being given a second chance to prove his case another ordeal against the defendant who by the non-suit order will of necessity enter into a second litigation with the Plaintiff”. Again, the order could mean an injustice against the plaintiff who could claim to have satisfactorily proved his case yet was being required to once again commence his action a new and go into the ordeal of a new trial. It is for this reason that a trial judge should hear the parties on the important issue of non-suit before making the Order”. PER M. U.PETER-ODILI, J.S.C
FAIR HEARING- MEANING OF FAIR HEARING
“On the meaning of fair hearing, this Court in Inakoju Vs Adeleke (2007) 4NWLR (Pt. 1025) 423 618 E-F held thus: “The constitutional provision mainly stems or germinates from two common law principles of natural justice. They are audi aiteram partem and nemo judex in causa sua…..The meaning of the Latinism [audi alteram partem] is “hear the other side; hear both sides. No man should be condemned unheard.” … What the rule or doctrine means is that the parties must be given equal opportunity to present their cases to the court and no party should be given more opportunity or advantage in the presentation of his case.” PER K.M.O KEKERE-EKUN, J.S.C
RAISING AN ISSUE SUO MOTU -PRINCIPLE REGARDING RAISING AN ISSUE SUO MOTU
“In the case of: Olusanya Vs Olusanya (1983) 14 NSCC 97 2 102, this court stated the principle regarding raising an issue suo motu by the court thus: “This court has said on a number of occasions that although an appeai court is entitled, in its discretion, to take points suo motu, if it sees fit to do so, yet that discretion must be exercised sparingly and in exceptional circumstances only: where the points are so taken, the parties must be given the opportunity to address the appeal court before decision on the points is made by the appeal court.” See also: Ejike VS C.O.P. (2015) 4 – 5 SC (Pt.1) 101.” PER K.M.O KEKERE-EKUN, J.S.C
FAIR HEARING- MEANING OF FAIR HEARING
“On the meaning of fair hearing, this Court in Inakoju Vs Adeleke (2007) 4NWLR (Pt. 1025) 423 618 E-F held thus: “The constitutional provision mainly stems or germinates from two common law principles of natural justice. They are audi aiteram partem and nemo judex in causa sua…..The meaning of the Latinism [audi alteram partem] is “hear the other side; hear both sides. No man should be condemned unheard.” … What the rule or doctrine means is that the parties must be given equal opportunity to present their cases to the court and no party should be given more opportunity or advantage in the presentation of his case.” PER K.M.O KEKERE-EKUN, J.S.C
ORDER OF NON -SUIT – RATIONALE ON THE NEED FOR HEARING PARTIES BEFORE AN ORDER OF NON SUIT IS MADE
“The reason for the need to hear the parties before the order of non-suit is made in order that the right to fair hearing of the party as enshrined in Section 36 of the 1999 Constitution or Section 33 of the 1979 Constitution is not infringed upon. That is why this Court as the apex Court has again and again deprecated a situation where a court raises a matter or issue without calling on the parties or counsel on their behalf to address it on the matter. The implication of the failure to so have the counsel or parties address the court is well captured in the case of Afolabi v. Adekunle (1983) 3 SCNLR 141 at 148 per Aniagolu JSC and as follows:- “What the learned trial judge did by calling upon the parties to address him on what order to make dismissal or non-suit was merely to follow the advice of this Court in number of cases. Craig V Craig, 1967 NMLR 52, Bakare Elufisoye V Samuel Alabetutu 1968 NMLR 298 At 301, Mrs. Aigbe v Bishop John Edokpolor 1977 2 SC Page 1; Omoregbe v Lawani (1980) 3-4 SC 108 namely that where at the close of the hearing of a case, the trial Judge should think of entering a non-suit it is desirable that he should ask counsel for the parties for their submissions on the intended order. This is as it should be as has been pointed out in these cases, because the entry of an order for non-suit means that the plaintiff is being given a second chance to prove his case another ordeal against the defendant who by the non-suit order will of necessity enter into a second litigation with the Plaintiff”. Again, the order could mean an injustice against the plaintiff who could claim to have satisfactorily proved his case yet was being required to once again commence his action a new and go into the ordeal of a new trial. It is for this reason that a trial judge should hear the parties on the important issue of non-suit before making the Order”. PER M. U.PETER-ODILI, J.S.C
RAISING AN ISSUE SUO MOTU -PRINCIPLE REGARDING RAISING AN ISSUE SUO MOTU
“In the case of: Olusanya Vs Olusanya (1983) 14 NSCC 97 2 102, this court stated the principle regarding raising an issue suo motu by the court thus: “This court has said on a number of occasions that although an appeai court is entitled, in its discretion, to take points suo motu, if it sees fit to do so, yet that discretion must be exercised sparingly and in exceptional circumstances only: where the points are so taken, the parties must be given the opportunity to address the appeal court before decision on the points is made by the appeal court.” See also: Ejike VS C.O.P. (2015) 4 – 5 SC (Pt.1) 101.” PER K.M.O KEKERE-EKUN, J.S.C
RIGHT OF FAIR HEARING – EFFECT OF A BREACH OF FAIR HEARING IN PROCEEDINGS
“Also settled is the principle of law that where the right of fair hearing as breached in any proceeding, the said proceeding is liable to be declared a nullity by an appellate court.” PER W.S.N. ONNOGHEN, J.S.C
FAIR HEARING- STATUS OF PROCEEDING CONDUCTED WITHOUT FAIR HEARING
“This is because the law is trite that any proceedings conducted without fair hearing amounts to a nullity and is bound to be set aside. See: Mfa & Anor. Vs Inongha (2014)1- 2 SC (Pt 1) 43 @ 72: Tsokwa Motors (Nig.)Ltd.Vs U.B.A. Plc. (2008) All FWLR (Pt.403) 1240 @ 1255 A – B; Adigun Vs A.G. Oyo state (1987) 1 NWLR (Pt.53) 674: Okafor Vs A.G. Anambra State (1991) 3 NWLR (Pt 200) 59: Leaders & Co. Ltd. Vs Bamaiyi (2010) 18 NWLR (Pt.1225) 329.” PER K.M.O KEKERE-EKUN, J.S.C
CASES CITED
NONE
STATUTES REFERRED TO
1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
3. High Court of Lagos State (Civil Procedure) Rules 1994
