CORAM
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Muslim Sule Hassan Justice of the Court of Appeal
PARTIES
1. M.Y. SULEIMAN
2. DANIEL HASSAN
APPELLANTS
1. JUSTICE SHITTU ANKUMA
2. THE HON. JUDGE, UPPER AREA CUSTOMARY COURT KWOI
3. THE REGISTRAR UPPER CUSTOMARY COURT KWOI,
4. HON. JOSEPH TURCJ, MEMBER CUSTOMARY COURT, KWOI
RESPONDENTS
AREA(S) OF LAW
CONSTITUTIONAL LAW, HUMAN RIGHTS, ADMINISTRATIVE LAW, CIVIL PROCEDURE, PRACTICE AND PROCEDURE, FAIR HEARING, JUDICIAL REVIEW, JUDGMENT ENFORCEMENT
SUMMARY OF FACTS
This case revolves around an application for judicial review filed by the Appellants seeking to quash the proceedings of the Upper Area Customary Court Kwoi. The 1st Respondent was a beneficiary of a judgment of the Customary Court of Appeal, which was affirmed by the Court of Appeal in Appeal No. CA/K/137/2010. When the 1st Respondent sought to execute the judgment against the Appellants by way of motion, the Appellants failed to file any process in response to the motion for execution. After some adjournments, the Court granted the 1st Respondent leave to argue the motion for execution, for which the Appellants prayed to respond orally on points of law.
However, when the motion was moved, the Appellants instead asked for an adjournment to respond to the argument made. The Court refused the adjournment and granted the 1st Respondent leave to execute the judgment. The Appellants then filed an application for writ of certiorari, claiming violation of their right to fair hearing. They also alleged bias, as one of the panel members (the 4th Respondent) was related to the 1st Respondent. The Kaduna State High Court sitting at Kafanchan dismissed the application for judicial review for lack of merit, prompting this appeal to the Court of Appeal.
HELD
1.The appeal lacks merit and is dismissed.
2.The Appellants were not denied their right to fair hearing as they failed to take advantage of the opportunities presented to them.
3.The presence of the 4th Respondent on the panel, even if he was a member of the family of the 1st Respondent, could not affect the enforcement of a subsisting judgment.
4.The trial Court’s interpretation of Order 17 Rule 3 was proper, as the Court has discretion to grant execution of a judgment after the lapse of two years.
5.The 2nd Appellant, having been joined in the case at a stage at the trial Court, was aware of the judgment against the estate of his late father, and service of processes on him was not necessary as the 1st Respondent could proceed against the 1st Appellant.
ISSUES
1.Whether the proceedings of the trial Court sought to be quashed before the Court below violated the rule of fair hearing and whether the judgment of the Court below that affirmed the ruling of the trial Court amounted to the violation of the Appellants’ right of fair hearing and the affirmation of the violation of fair hearing.?
2.Whether the position taken by his lordship of the Court below that motion on notice was needless pursuant to Order 17 Rule 3 of the Trial Court’s Rules was in error and whether it was an issue raised suo motu, and the learned Judge of the Court below needed to have invited parties to address the Court on it before making pronouncements to the detriment of the Appellants, especially the second Appellant.?
RATIONES DECIDENDI
RIGHT TO FAIR HEARING – DUTY OF PARTIES TO UTILIZE OPPORTUNITIES AFFORDED BY COURT:
“A party who has an opportunity to present his case before the Court and fails to do so cannot be heard to complain of breach of his right to fair hearing. See Inakoju & Anor v. Adeleke & Ors (2007) 1 SC (Pt.l) 1 at 113. The application of doctrine applies to parties of the proceeding, and so any party who fails to take advantage of the opportunities can’t turn around later to accuse the Court or Tribunal of the opportunities. See Newswatch Communication Limited v. Atta (2006) 4 SC (Pt.) 114 at 140-141.” – Per MUSLIM SULE HASSAN, J.C.A.
NATURE OF FAIR HEARING – OBLIGATION OF ALL PARTIES INVOLVED:
“Fair hearing is not a one sided game, it is for the Court, the Appellants and the Respondents. The Appellant clearly have waved their right to respond to the application for enforcement, and this is clearly when ample opportunity had been availed the Appellants to respond.” – Per MUSLIM SULE HASSAN, J.C.A.
ENFORCEMENT OF JUDGMENT – CLAIM OF FAIR HEARING WHEN JUDGMENT IS ALREADY ESTABLISHED:
“This is equally more so that it is the enforcement of a judgment that had been decided by the Court in favour of the Respondent that the Appellants are crying of fair hearing. I see no wrong done to the Appellant by the Customary Court not granting adjournment to the Appellant to respond to the argument of counsel.” – Per MUSLIM SULE HASSAN, J.C.A.
BIAS ALLEGATION – RELEVANCE AT ENFORCEMENT STAGE:
“On the contention of the 4th Respondent, being a member of the family of the 1st Respondent, and also on the panel of the Court, the matter as rightly noted by the trial high Court, was for enforcement of a judgment already entered. The presence of the 4th Respondent on the panel, even if he was a member of the family of the 1st Respondent, cannot change the fact that the judgment is still subsisting and the 1st Respondent must reap the fruit of his judgment. If it were at hearing stage, then the tendency of the 4th Respondent being biased can be germane.” – Per MUSLIM SULE HASSAN, J.C.A.
EXECUTION OF JUDGMENT AFTER TWO YEARS – JUDICIAL DISCRETION:
“The issue of Order 17 Rule 3 brings to bear the discretion of the trial Court as a composite reading of the said Order will reveal that a Judge may exercise his discretion to grant execution of the judgment of a customary Court after lapse of two years. Therefore, the grant of the order for enforcement in the face of that provisions did not prejudice the Appellants.” – Per MUSLIM SULE HASSAN, J.C.A.
SERVICE OF PROCESS ON SUCCESSOR TO DECEASED PARTY:
“On the issue of service of the process on the 2nd Appellant, he was joint in the case at a stage at the trial Court by the 1st Appellant, therefore, he being an appellant clearly meant that he was aware of the judgment of the Court against the estate of his late father. More so, the judgment sought to be enforced was against the 1st and 2nd Appellants’ father jointly and severally; the 1st Respondent could rightly proceed against the 1st Appellant as he did.” – Per MUSLIM SULE HASSAN, J.C.A.
FAILURE TO RESPOND – IMPLICATION FOR FAIR HEARING CLAIM:
“Failure of the Appellant to respond or present his case at the hearing for execution of judgment implies that the Appellant has no defence and that he rests his case on the case of the Respondents; as such, Appellant is estopped from crying foul neither can he use the tool of fair hearing as a cover. In JONES V. UDOH (2024) 16 NWLR (PT. 1963) 124, it was held by the LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE OF THE BODY OF BENCHERS that: ‘Where a party fails, refuses or neglects to take advantage of or utilize the environment created by a Court to exercise his right to fair hearing, he cannot turn around to complain a lack of fair hearing. INEC v. Musa (2003) 3 NWLR (Pt. 806) 72; Dantata v. Mohammed (2012) 8 NWLR (Pt. 1302) 366.’ (P. 148, paras. G-H).” – Per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
RIGHT TO REAP FRUITS OF JUDGMENT – PROTECTION OF SUCCESSFUL LITIGANT:
“The law is trite that a party who succeeds in a case is entitled to pluck the fruits of his victory otherwise, he would have won a victory that has no value. The plea for adjournment is the Appellant’s ploy to delay the Respondent from reaping the fruit of his judgment and the Courts will not normally deprive a successful litigant the fruits of his success.” – Per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
PRESUMPTION OF CORRECTNESS OF JUDGMENT:
“This is because, unless a judgment is patently illegal or wrong, there is a presumption of its being correct until the contrary is proved. See OYEYEMI V. IREWOLE LOCAL GOVT. (1993) 1 NWLR (PT. 270) 462 (SC), LEADERS CO. LTD. V. ADETONA (2003) 14 NWLR (PT. 840) 431 (CA).” – Per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
APPLICATION FOR WRIT OF CERTIORARI – REQUIREMENT OF MERITORIOUS GROUNDS:
“The appeal lacks merit and is dismissed.” – Per MUSLIM SULE HASSAN, J.C.A.
ADJOURNMENT REQUEST – DISCRETION TO REFUSE WHEN DELAYING JUDGMENT ENFORCEMENT:
“The plea for adjournment is the Appellant’s ploy to delay the Respondent from reaping the fruit of his judgment and the Courts will not normally deprive a successful litigant the fruits of his success.” – Per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
APPELLATE REVIEW – DISMISSAL OF UNMERITORIOUS APPEALS:
“I was afforded the opportunity to read in draft the lead judgment delivered by my learned brother, Muslim S. Hassan, JCA. I agree that the appeal is unmeritorious and is hereby dismissed by me.” – Per ABDULLAHI MAHMUD BAYERO, J.C.A.
DISMISSAL OF APPLICATION FOR JUDICIAL REVIEW:
“On the whole, the appeal lacks merit and is dismissed.” – Per MUSLIM SULE HASSAN, J.C.A.
CASES CITED
STATUTES REFERRED TO
• Constitution of the Federal Republic of Nigeria, 1999 (as amended)
• Kaduna State High Court Civil Procedure Rules, 2007 (Order 37 Rules 1 and 2, Order 17 Rule 3, Order 5 Rule 3)
• Sheriff and Civil Process Act