Legalpedia Citation: (2023-09) Legalpedia 63762 (CA)

In the Court of Appeal

PORT HARCOURT JUDICIAL DIVISION

Wed Sep 13, 2023

Suit Number: CA/PH/253/2023

CORAM

Elfrieda Oluwayemisi Williams-Dawodu JCA

Mohammed Mustapha JCA

Danlami Zama Senchi JCA

PARTIES

LATEEF O. FAGBEMI SAN

APPELLANTS

1. ALL PROGRESSIVES CONGRESS
2. IBRAHIM UMAH
3. DAVID NDAH
4. PRINCE MORRIS
5. KEDUM BALE
6. OTOKIM JACK
7. OMUBOYE BRIGGS
8. ABELEMI SATURDAY
9. AMARATO MARK
10. JOHNSON EKE
11. SUNDAY CLINTON
12. AMADI STEPHEN
13. AYITEH IKECHI
14. ORJI BARIDA
15. HORACE OBED
16. WONAH GODWIN A.
17. SUNDAY ELLAH
18. JONATHAN NKPOME
19. FABIAN THODORE DAGOGO
20. NWOKE OKWUDIRI
21. JOHN JAJA TUNOTAMUNO
22. ZORMA BARIDURA F.
23. MENEMU FRIDAY TEDDY
24. NDUKWU ZEREUWA

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, CONTRACT, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

At the trial court, Rivers State High Court, the 2nd-24th Respondents (as Applicants) before the trial Court instituted this action leading to the instant appeal against the portion of the judgment of the trial Court against the 1st Respondent (Respondent).

The Appellant, Lateef O. Fagbemi, a Senior Advocate of Nigeria is not a party to the action instituted by the 2nd -24th Respondents at the trial Court. Rather, the Appellant was, by a letter of instruction briefed and appointed by the 1st Respondent, the All Progressives Congress to lead a team of lawyers in its defence against Suit No. BHC/78/2018 between IBRAHIM UMAH & 22 ORS V ALL PROGRESSIVES CONGRESS. The Appellant as could be seen from the proceedings on record appeared twice on behalf of the 1st Respondent.

On 26th June, 2018, when the Appellant appeared before the trial Court, there was an argument between the Appellant and one F.C. Nwafor, Esq who was briefed by the Rivers State chapter of the 1st Respondent over legal representation on behalf of the 1st Respondent (APC) sued as Respondent in the suit. The Court after hearing arguments from the parties adjourned its ruling to 27th July, 2018, but unfortunately, the Court did not sit on that day and the proceedings were consequently adjourned off record to 2nd August, 2018.

By a letter dated 31st July, 2018 addressed to the Appellant, the 1st Respondent was instructed to refrain from further representing the party in the above matter and to kindly withdraw any processes which he may have filed for the party, All Progressives Congress, in respect of same pending further instructions from the party. This letter was not delivered to the Appellant until after the ruling on 2nd August, 2018 while the counsel to the claimant had same and had filed it before the Court.

Although the trial Court ruled on 2nd August, 2018 that the Appellant and Tuduru Ede Esq. are barred from appearing for the Respondent without giving the Appellant and Tuduru Ede, Esq the opportunity to comment on the letter 31st July, 20218 which was not part of the materials considered during the arguments on 27th June, 2018, the trial Court proceeded to hear the substantive Originating Summons.

On the 3rd August, 2018 the 1st Respondent wrote another letter addressed to the Appellant resolving to continue with the Appellant as the only Counsel on record in the above suit on behalf of the party.

Hence therefore, the consideration of the letter dated 31st July, 2018 by the trial Court in its judgment on 10th October, 2018 and the castigation of the learned trial Judge was raised by the learned trial Judge.

The trial Court ruled against the Appellant. Aggrieved with the part of the trial Court’s judgment, the Appellant filed the instant appeal.

HELD

Appeal allowed

 

ISSUES

1. Having regard to the relevant letter(s) of instruction in the records of the trial Court, whether the trial Court was right that the Appellant, at the material time, did not have the authority and instruction of the All Progressives Congress (APC) to act as Counsel on its behalf so as to warrant the trial Court’s castigation of the Appellant?
2. Considering the entire circumstance of the case and the record of the trial Court whether the trial Court was right to have castigated the Appellant (who merely acted as Counsel) and ascribed/attributed acts of unethical behavior or misconduct to the Appellant, without affording him a hearing, in breach of his constitutional right to fair hearing?

RATIONES DECIDENDI

COURTS – CONDUCT OF COURTS TO ARGUMENTS ON LEGAL REPRESENTATION OF PARTIES

…I want to first refer to the proceedings of 26th June, 2018 when the trial Court agreed to hear arguments on legal representation of the 1st Respondent. Ordinarily, the trial Court ought to have declined hearing arguments between the Appellant and F.C Nwafor Esq, and advised both Counsels to go and sort out their differences. This is because the Supreme Court and this Court has held in several cases that issues of representation by Counsel is a matter of Counsel- Client relationship, the Court does not and cannot get involved in. See ZAKRAT V MOHAMMED, (2017) 17 NWLR (pt 1594) 181 at 213 paragraphs B – E. In the case of STATE V MATHEW (2018)9 NWLR (pt 1625) 399 at 412 paragraph D, the Supreme Court held as follows:-

“Indeed, the normal practice prescribes that a Court lacks jurisdiction to look into whether or not a Counsel has an instruction or briefing of his client to appear in Court.” – Per D. Z. Senchi, JCA

COURTS – CONDUCT OF COURTS WHERE A LOT OF CORRESPONDENCE IS PUT IN EVIDENCE

In the case of SHELL B.P PETROLEUM CO. LTD V JAMMAL ENGINEERING (1974)4 SC 33 at 72, the Supreme Court as per COKER, JSC pronounced as follows:-

“The final exercise of judgment of necessity involves a consideration of all the correspondence that is properly put in evidence by both sides, all the correspondence tendered in order to establish the case and all that produced in order to disprove the existence of a contract. It is only after such detailed consideration that a tribunal can fairly come to a conclusion as to whether or not the parties actually arrived at an agreement. See THOMAS HUSSEY V HORNEN RAYNE (1879)4 APP. Case 311. The task of analyzing the several letters and attempts to reconcile the one with the other is undoubtedly a very difficult one calling for the most serious examination of each and every one of several documents until the tribunal is able to say whether a contract is indeed established.”

In the case of AMUDA YUSUF ANIMASHAUN & ANOR V OLUYINKA OGUNDIMU & ORS (2015) LPELR -25979, this Court as per CHINWE EUGENIA IYIZOBA, JCA held as follows:-

“There is enough evidence to show that the two letters are related and that the notice in the 19th September, 2014 covers the primaries held on the 1st of December, 2014, and is in full compliance with Section 85 (1) Electoral Act being far beyond the 21st days notice required. Furthermore, exhibit D1, a letter dated 5th November, 2014 which clarifies the nexus between exhibits D and C reads:-

“Please be advised that with respect to the notice of our special congress for the nomination of our candidates, we wish to notify you of postponement of same to dates which shall be communicated soon” thus, it was right for the tribunal to conclude that both notices are linked because they are not independent of each other. I agree with the position of law as canvassed by the 1st and 2nd Respondents’ Counsel that where more than one document govern a particular transaction, no single document will be interpreted in isolation and I adopt the cases cited by learned Counsel. UDEAGU V BENUE CEMENT CO. PLC (supra), ALHAJI M.K V FIRST BANK OF Nigeria PLC (supra), THE ATT. GEN. OF KADUNA STATE V ATTA. (1986) 4 NWLR (pt 38) 785 (CA). In the case of UDEAGU V BENUE CEMENT CO PLC (supra) thus, “it is not the duty of a Court to determine the issues before it on the basis of one document only, when a contract is contained in a series of documents or letters or correspondences. The Court is under a duty, to consider the whole of what has passed between the conduct of the parties. All these letters are documents which belong to the same transaction.” – Per D. Z. Senchi, JCA

COURTS – DUTY OF A COURT TO EVALUATE ALL EVIDENCE PLACED BEFORE IT

It is crystal clear and indeed there is no dispute that letters of correspondence or documents forming the entire transaction between the Appellant and the 1st Respondent are letters dated 25th June, 2018, 31st, July, 2018 and 3rd August, 2018 which were all before the trial Court. And the law is trite that on or before the 10th October, 2018 when the trial Court delivered its judgment, it is entitled to and/or obligated to look and scrutinize contents of the case file or records or refer to same in consideration of any matter or issue before it. See the cases cited by the learned senior Counsel to the Appellant i.e AKEREDOLU V ABRAHAM, (2018) 10 NWLR (Pt 1628) 510 at 533 paragraph B-C, UZODINMA V IZUNASO (NO2) (2011)17 NWLR (Pt 1275) 30 AT 88-89 paragraphs H-A, NNPC V ROVEN SHIPPING LTD (2019)9 NWLR (PT 1676)67 at 93 -94 paragraphs G-A. – Per D. Z. Senchi, JCA

SUSPICION – MEANING OF SUSPICION – CONDUCT OF COURTS WHERE SUSPICION ARISES

Suspicion, in the case of GBENGA OSHO V THE STATE, (2011) LPELR-4804, this Court as per

GARBA, JCA (as he then was now JSC) defined the word as follows:-

“Judicially the word suspicion has been defined to mean a mere feeling of thought that someone is guilty of something in criminal trials, suspicion is the feeling or thought without factual basis for the feeling or thought in a person in respect of another is what amounts to suspicion.”

And it is trite that suspicion or insinuation undermines the real essence of justice leaving it at the mercy and realm of conjecture, trial and error and above all, makes the administration of justice seen as a game of jackpot. And where there arose suspicion, then it ought to be to the/serious investigation and proof by the learned trial Judge by scrutinizing its case file or records in order to arrive at an informed position. – Per D. Z. Senchi, JCA

SPECULATION – WHETHER COURTS CAN DECIDE CASES BASED ON SPECULATION, HYPOTHESIS, OR SUPPOSITION

The law is that the Court has a duty not to decide issue based on speculation, hypothesis, or supposition. These are mere variant of imaginative guess which even when it appears plausible, should never be allowed by a Court of law to fill any hiatus in the evidence before it. In other words, a Court of justice does not go by speculation. The duty of the Court is to apply the law and to see to it that justice is done to both parties. See ADEFULU & ORS OKULAJA & ORS, (1996) LPELR – 24853 (SC), PANALPINA V WARIBOKO (1975)2 SC 29 AT 35. In the case of IGABELE V STATE (2006)LPELR -1441, the Supreme Court Per OMU, JSC held as follows:-

“…It is trite law that Court should not speculate on evidence but decide on the evidence presented before it. OKOKO V STATE (1964) 1 ALL NLR 423 at 428. The Court is only entitled to rely on the evidence before it and not on speculations. See SEISMOGRAPH SERVICE (NIGERIA) LTD V OGBENI (1976) 4 SC 101”

See also STATOIL (NIG) LTD V INDUCON (NIG)- LTD. (2021)7 NWLR (PT 1774)18 At 128 – 129 paragraphs E-C,  OGUEBIE V FBN PLC (2020)4 NWLR (Pt 1715) 531 at 551 paragraphs B-D, FRN V BARMINAS (2017) 15 NWLR (Pt 1588)177 at 204 paragraphs F-H, OSUJI V EKEOCHA, (2009)16 NWLR (pt 1166)81, IROLO V UKA, (2002)14 NWLR (pt786)195 and JIBRIN V FRN, (2020)4 NWLR (pt 1714)315 at 344 paragraphs E-G, all cited by the learned Senior Counsel to the Appellant. – Per D. Z. Senchi, JCA

COURTS – CONDUCT OF COURTS IN PROPERLY EVALUATING EVIDENCE

…the learned trial Judge must interpret the letters or documents not in pockets or isolation but as one composite whole and then employ beneficial interpretation as to what appears to have been the object of the maker more fully than narrow meaning see NAFIU RABIU V STATE (1980) 8 11 SC and BASSEY OYUBE ATTOE & ANOR V DAVID ATTOE & ORS (2021) LPELR – 54143 (CA). – Per D. Z. Senchi, JCA

FAIR HEARING – EFFECTS OF THE BREACH OF A PARTY’S RIGHT TO FAIR HEARING

In the case of GIDIYA & ORS V SANUSI & ORS (2022)LPELR 58932, the Supreme Court as Per JAURO, JSC at page 19 paragraphs A-B held as follows:-

“It has to be reiterated that the law has been settled in a myriad and legion of cases that the inevitable and attendant consequence of the breach of a party’s right to fair hearing is that it renders the trial or proceedings a nullity”  – Per D. Z. Senchi, JCA

COURTS – THE DUTY OF A JUDGE TO EXERCISE JUDICIAL PROBITY

the learned trial judge failed to adhere to wise counseling of the Apex Court in the case of ATAKE V A. G FEDERATION & ANOR (1982)13 NSCC 444 at 473 as follows:-

“The above duty of a Judge must be balanced by the other requirement that a Judge must not give in to intemperate and excessive reaction, or he easily irritable to a party’s conduct of his case. Always guided by mature experience on the bench, a Judge is to exercise judicial probity realizing that in some cases excessive reaction from a Judge may do as much harm to the image of the Court as insufficient reaction to a blatant in suit” – Per D. Z. Senchi, JCA

 

COURTS – THE POSITION OF THE COURTS REGARDING A JUDGE GIVING A DECISION ON A POINT NOT ARGUED BEFORE IT

The Supreme Court, in the case of THE STATE V INYA ADU, (2022)7 NWLR (pt 1830)461 at 485 Per AGIM JSC held as follows:-

“It is wrong for a Judge to give a decision on a point on which opportunity was not afforded counsel to argue at the hearing and particularly a point which throughout the hearing was not raised. It’s a general rule, the Supreme Court has always regarded with disfavor the practice of a Court giving a decision on a point not argued before it.” – Per D. Z. Senchi, JCA

 

FAIR HEARING – WHERE A PARTY’S RIGHT TO FAIR HEARING IS BREACHED

The issue of the Appellant to be heard on the letter dated 31st July, 2018 is quite fundamental and a breach of his right to fair hearing as guaranteed by Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) renders the entire portion of the proceedings and judgment affecting the Appellant null and void. See DASUKI V FRN, (2021)9 NWLR (pt1781) 249 at 271 -273.  – Per D. Z. Senchi, JCA

FAIR HEARING – THE IMPORTANCE OF FAIR HEARING

The learned trial Judge who appears to have knowledge in the Holy Book – Bible should also know that in Gen. 3:11 KJV, even though ….. God knew that Adam had eaten the forbidden fruits, he still asked him thus:-

“Hast thus eaten of the tree whereof I commanded thee that thus shouldest not eat.”

Thus, fair hearing is a fundamental constitutional right and any infraction of it vitiates the proceedings and rendering same null and void. – Per D. Z. Senchi, JCA

JUDGES – DUTY OF JUDGES TO WATCH THEIR CONDUCTS WITHIN AND OUTSIDE THE COURTROOM

By the Oath of office of a Judicial Officer, he has to watch his own conduct within and outside Courtroom. There is no doubt that a Judicial Officer, just like any other citizen, is entitled to freedom of expression, belief and association but in exercising such rights, a Judge shall always conduct himself in such a manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary. Accordingly, a Judge must act with such restraint as is necessary to maintain public confidence and must avoid involvement in making comments or remarks on issues that are not before him. Such comments or remarks can invariably erode the confidence of parties and indeed the citizenry. – Per D. Z. Senchi, JCA

 

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. APC Constitution 2014 (as amended)

CLICK HERE TO READ FULL JUDGMENT