GBENGA OJO v. FEDERAL REPUBLIC OF NIGERIA
March 18, 2025MR. PATRICK UMOH V. MRS. INIMFON ANIEKAN NELSON
March 18, 2025Legalpedia Citation: (2023-03) Legalpedia 50272 (SC)
In the Supreme Court of Nigeria
Holden at Abuja
Fri Mar 3, 2023
Suit Number: SC.114/2006
CORAM
KUDIRAT MOTONMORI KEKERE-EKUN
MOHAMMED LAWAL GARBA
HELEN MORONKEJI OGUNWUMIJU
IBRAHIM MOHAMMED MUSA SAULAWA
ADAMU JAURO
PARTIES
CHIEF EMMANUEL OBASAN
APPELLANTS
1. MOJIDI ABUDU
2. AILERU ADENUGA (For And On Behalf Of The Paripete Ruling House Of Ago-Iwoye)
3. THE SECRETARY IJEBU NORTH LOCAL GOVERNMENT
4. THE ATTORNEY GENERAL, OGUN STATE
5. GOVERNOR, OGUN STATE
RESPONDENTS
AREA(S) OF LAW
APPEAL, PRACTICE AND PROCEDURE, JUDGEMENT, CONSTITUTIONAL LAW, EVIDENCE, CUSTOMARY LAW
SUMMARY OF FACTS
Sometime in 1988, Oba D.M. Osiyemi, the Ebumawe of Ago Iwoye in Ogun State joined his ancestors. In accordance with the Chieftaincy Declaration regulating the Chieftaincy, it was the turn of the Paripete Ruling House to present a candidate to fill the vacant stool.
A meeting of the Paripete Ruling House was held and the names of four persons, including C.A. Adesanya (now deceased), were nominated and forwarded to the kingmakers. The kingmakers selected the said C.A. Adesanya and forwarded his name to the then Military Governor of Ogun State for approval despite protests from some family members that it was the function of the family to elect one of the candidates and that the kingmakers had usurped their function. The Military Governor granted his approval.
The appellant, Chief Emmanuel Obasan and one Otunba Samson Olatunji Onalaja, felt aggrieved and instituted an action before the High Court of Ogun State. It is relevant to state that C.A. Adesanya, who was the 2nd Defendant, died before the trial commenced.
The trial Judge answered the questions formulated in the appellants’ favour but proceeded to strike out the suit on the issue of waiver. The appellants were dissatisfied with the judgment on the ground that the issue of waiver upon which the learned trial Judge struck out their case did not form part of the issues for determination agreed upon by the parties and adopted by the Court. It was contended that the issue of waiver was raised for the first time in the 3rd to 5th respondents’ Further Amended Statement of Defence after the parties had concluded their final addresses. They filed an appeal at the Court of Appeal.
The Court of Appeal allowed the appeal and declared the judgment a nullity, for breach of the appellants’ right to fair hearing. The Court ordered that the case be assigned to another Judge to be heard de novo.
The appellant is dissatisfied with the judgment and has further appealed to this Court.
HELD
Appeal Dismissed
ISSUES
Whether the judgment of the Ogun State High Court delivered on 2nd April 1998 is “null and void” by reason of the wrong decision of the High Court on the issue of waiver?
Whether the Court of Appeal ought to have granted the reliefs sought by the Appellant in the circumstances of this case?
RATIONES DECIDENDI
FAIR HEARING – EFFECT IN LAW OF PROCEEDINGS CONDUCTED IN BREACH OF THE RIGHT OF FAIR HEARING
My Lords, the authorities of this Court on the effect in law of proceedings conducted in breach of the right to fair hearing are legion. I shall refer to them in due course.
Section 36(1) of the 1999 Constitution, as amended, provides:
“36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such a manner as to ensure its independence and impartiality.” . – Per K. M. O. Kekere-Ekun, JSC
FAIR HEARING – STEMS OF THE PRINCIPLE OF FAIR HEARING
The principle of fair hearing stems from the two common law principles of natural justice, to wit: “audi alteram partem” (hear the other side) and “nemo judex in causa sua” (a man shall not be a judge in his own cause – no judge should preside over a matter in which he has a personal interest or involvement). See: Adigun v. A. G. Oyo State (1987) 1 NWLR (Pt.53) 678; General Electric Co. v. Akande (2010) LPELR – 8097 (SC) @ 18 A – D; Inakoju v. Adeleke (2007) 4 NWLR (Pt.1025) 425 @ 618 E-F. – Per K. M. O. Kekere-Ekun, JSC
FAIR HEARING – BREACH OF PARTY’S RIGHT TO FAIR HEARING
The Constitutional right to fair hearing is mandatory and non-negotiable. The effect of any proceeding conducted in breach of a party’s right to fair hearing is a nullity and liable to be struck out, no matter how sound the judgment or order may be. As stated earlier, the authorities on the point are numerous. Just a few will be referred to: A. G. Rivers States v. Ude & Ors. (2006) 17 NWLR (Pt.1008) 436; (2006) LPELR – 626 (SC) @ 19 B – D; Wagbatsoma v. FRN (2018) LPELR – 43722 (SC) @ 29-30 E – D; Kotoye v. C.B.N. (1989) 1 NWLR (Pt.98) 419 @ 488 C – D; Oyeyemi v. Owoeye (2017) 12 NWLR (Pt.1580) 364; (2017) LPELR – 41903 (SC) @ 56 B – E.
Per K. M. O. Kekere-Ekun, JSC
FAIR HEARING – CONDUCT OF THE COURT
It is well settled that where a Court raises an issue suo motu and makes a decision based on that issue without first inviting the parties to address it, it constitutes a breach of the parties’ right to fair hearing and occasions a miscarriage of justice. Once the Court makes a finding that there has been a breach of the right to fair hearing, it has no other option than to set aside the proceedings and any order or decision rendered therein. See: Wagbatsoma v. FRN (supra); Omoniyi v. Alabi (2015) LPELR – 24399 (SC) @ 23 B – C; MFA & Anor. v. Inongha (2014) 1-2 SC (Pt. 1) 43 @ 72; Tsokwa Motors (Nia) Ltd. v. UBA Plc (2008) ALL FWLR (Pt.403) 1240 @ 1255 A – B.
Per K. M. O. Kekere-Ekun, JSC
FAIR HEARING – EXCEPTIONS TO THE GENERAL RULE
There are a few exceptions to the general rule, as stated by this Court in Omokuwajo v. FRN (2013) LPELR- 20184 (SC) @ 37-38 G – D per Rhodes-Vivour, JSC thus: “The need to give parties a hearing when a Judge raises an issue on his own motion or suo motu would not be necessary if:
(a) the issue relates to the Court’s own jurisdiction;
(b) both parties are/were not aware or ignored a statute which may have bearing on the case. That is to say where by virtue of statutory provision the judge is expected to take judicial notice. See Section 73 of the Evidence Act; (c) when on the face of the record serious questions of the fairness of the proceedings is evident.” See also: Effiom v. C.R.O.S.I.E.C. (2010) 14 NWLR (Pt.1213) 106 @ 133-134 H – A.
Per K. M. O. Kekere-Ekun, JSC
NULLITY – MEANING AND IMPLICATION
The legal import and consequence of the nullification of the proceedings of the trial Court are that, in law, the proceedings are invalid and void as if they were not conducted at all, ab initio, by the trial Court. Karibi-Whyte, JSC, speaking for this Court in the famous case of Okafor v. A. G. Anambra State (1991) 6 NWLR (pt. 200 659, stated the law that:- “A nullity is in law, a void act, and act which has no legal consequences. The act is not only bad, and as was stated by Denning L. J. in U.A.C. Ltd. v. Macfoy (1961) 3 All LR 1169, is incurably bad.”
In Abubakar v. Nasamu (2012) LPELR-7826, this Court restated the law that:- “A nullity in law is a void act, an act which has no legal consequences. A proceeding which has been declared a nullity is void and without legal effect or consequence whatsoever. It does not confer any legal right whatsoever, or it does not impose any obligation or liability on any one.” See also Saleh v. Monguno (2006) 7 SC (pt. 11) 97, (2006) 15 NWLR (pt. 1001) 316, Nwosu v. Udeaja (1990) 1 NWLR (pt. 125) 180, Okoye v. N.C.E. & CO. Ltd. (1991) 6 NWLR (pt. 199) 501 at 538.
Per M. L. Garba, JSC
NULLITY – CONDUCT OF THE COURT
As stated in the lead judgment, once proceedings of a lower Court are declared a nullity by an appellate Court on the ground of denial or violation of a party’s right to fair hearing, the only proper, appropriate, and valid step to take and order to make by the appellate Court is one for a valid trial of the case in which the parties shall be afforded and accorded the full right to a fair hearing in the proceedings. See Otapo v. Sunmonu (1987) 2 NWLR (pt. 58) 587, Salu v. Egeibon (1994) 6 NWLR (pt. 348) 23, Danladi v. Dangiri (2015) 2 NWLR (pt. 1442) 124, Kalu v. State (2017) 14 NWLR (pt. 1586) 522 at 547.
Per M. L. Garba, JSC
FAIR HEARING – A CONDITION FOR THE VALIDITY OF PROCEEDINGS
Fair hearing is a fundamental right firmly entrenched in our laws by Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). It is a condition for the validity of any proceedings. Fair hearing or lack of it depends on the procedure followed in a case. When a party alleges that his fundamental right to fair hearing has been breached, the question to consider is not whether injustice has been done because of the lack of hearing, it is whether a party entitled to be heard before deciding an issue had in fact been given an opportunity of a hearing. See DASUKI v. F.R.N. (2021) 9 NWLR (PT. 1781) 249; TYONEX (NIG.) LTD v. PFIZER LTD. (2020) 1 NWLR (PT. 1704) 125; U.N.T.H.M.B. v. NNOLI (1994) 8 NWLR (PT. 363) 376.
Per Adamu Jauro, JSC
FAIR HEARING – BREACH OF RIGHT TO FAIR HEARING – CONSEQUENCE.
Learned counsel ought to have realized that once it is determined that a party’s right to fair hearing was breached, the consequence is that the entire proceedings, including any trial and decision arrived at, are vitiated and will be nullified. See AYOADE v. STATE (2020) LPELR – 49379 (SC); THOMAS v. F.J.S.C. (2019) 7 NWLR (PT. 1671) 284; EZENWAJI v. U.N.N. (2017) 18 NWLR (PT. 1598) 485.
It therefore follows that the Appellant who complained of breach of his fundamental right to fair hearing cannot pick and choose which portion of the proceedings and judgment to be set aside.
Per Adamu Jauro, JSC
CASES CITED
STATUTES REFERRED TO
Registered Declaration of the Customary Law regulating the selection of the Ebumawe of Ago-Iwoye
Chiefs Law Cap 20 Laws of Ogun State
Constitution of the Federal Republic of Nigeria, 1999 (as amended).
