PRINCIPLES OF FAIR HEARING – MEANING OF FAIR HEARING – CONSEQUENCES OF A BREACH OF THE RIGHT TO FAIR HEARING
“The expression: “Fair-hearing” simply means giving equal opportunity to the parties to be heard in the litigation before the Court. See the case of Mohammed vs. Kano N. A. (1968) ALL NLR 411 at 413 (Reprint) where the apex Court per ADEMOLA, ON defined “fair-hearing” as thus:
“It has been suggested that a fair hearing does not mean a fair trial. We think that a fair hearing must involve a fair trial, and a fair trial of a case consists of the whole hearing. We therefore see no difference between the two. The true test of fair hearing, it was suggested by counsel, is the impression of a reasonable person who was present at the trial whether from his observation; justice has been done in the case.”
It is important to note that the right to fair hearing is a constitutionally guaranteed right under Section 36(1) of the Constitution of Nigeria 1999 (as amended). The consequence of establishing a breach of fair hearing in any given proceedings is that it renders it a nullity, notwithstanding how meticulous the proceedings would have been or how sound the resultant decision would have been on the merit. They are all a nullity. Case book is replete with decided cases on this issue. The question of whether a right to fair hearing is breached or not is dependent on the facts and circumstances of each given case. In other words, whether the right to fair hearing was breached or not is a question of facts to be determined on the facts and circumstances placed before the Court. This is so because fair hearing is primarily a matter of fact as it is only when the facts are ascertained that the law would be made to apply to the facts so established to see whether or not such established facts constituted a breach of the party’s right to fair hearing. See Newswatch Communications Limited vs. Alhaji Ibrahim Atta (2006) 12 NWLR (PT. 993) 144. – PER F. O. OHO, J.C.A
FUNCTUS OFFICIO – WHEN IS A COURT SAID TO BE FUNCTUS OFFICIO?
“A Court of law is said to be Functus Officio when its task is said to be performed with respect to a given matter pending before it. In the case of Mohammed vs. Husseini (1998) 14 NWLR (PT. 584) 108 AT 163 the apex Court defined the expression, thus: “The Latin expression Functus Officio simply means: task performed”. What this translates in essence, is that once a Judge gives a decision or makes an order on a matter, he no longer has the competence or jurisdiction to give another decision or order on the same matter as he would be said to be Functus Officio, having given a judgment or decision on the merit in the matter. – PER F. O. OHO, J.C.A
ABUSE OF COURT PROCESS – WHAT AMOUNTS TO ABUSE OF COURT PROCESS?
“It is important to state here that the issue of abuse of Court’s process is one that is paramount to adjudication for a number of reasons, chief amongst which are the followings;
1. This may result in the ridicule of the judicial system, where there are multiplicity or suits;
2. This issue of ridicule may stem from the fact that there may be the possibility of conflicting judgments and orders emanating from the multiple actions.
3. Multiple suits which had become an abuse, may amount to a waste of judicial resources.
The issue of abuse of process is indeed an issue of law, which borders and/or affects the jurisdiction of the Court and is therefore paramount to the adjudication of any dispute; hence it can be raised at any stage of the proceedings, even on appeal for the first time. It can even be raised suo motu by the Court. For the avoidance of any doubt, the term; “abuse of process of Court”, generally, is one that is applied to a proceeding, which is wanting in bona fides and frivolous, vexatious, or oppressive. Abuse of process can also mean abuse of legal procedure or improper use of the legal process. It is usually a process, which involves some bias, malice, some deliberateness and some desire to misuse or pervert the course of justice. See African Re-Insurance Corporation vs. JDP Construction Nig. Ltd (2003) 13 NWLR (PT. 838) at page 609 at 635 paragraphs F-G; USMAN vs. BABA (2005) 5 NWLR (PT. 917) 113 at 131 paragraphs E-G.
The categories of what amounts to an abuse of process are not closed. An abuse can manifest in a variety of ways one of which is the multiplicity of actions between the same parties on same issue, seeking the same reliefs. A Court of law, therefore frowns at such multiplicity of actions and once a Court is satisfied that any proceeding before it is an abuse of process it has the power, and indeed the duty to dismiss it. The Court, being the architect of its integrity and dignity must be ready and willing to protect all of its processes from being abused.
All said and done, and in agreement with learned Counsel for the Respondent, while essence of pleadings is to narrow down the issue in controversy between the parties in a case, the issue of abuse of Court process is not usually an issue in controversy between the parties before they came to Court. Rather, the issue of abuse of Court process will normally result after pleadings have been filed and exchange by parties. – PER F. O. OHO, J.C.A
NOTICE OF PRELIMINARY OBJECTION – PURPOSE OF GIVING A NOTICE OF PRELIMINARY OBJECTION
“Again, the purpose of giving a notice of preliminary objection in an action is to give the adversary an opportunity of reacting to the objection and to avoid any surprises. See the case of Agbaka & Ors vs. Amadi & Anor. (1998) LPELR- 231 (SC) where the apex Court per OGWUEGBU, JSC had this to say on the subject;
“The purpose of giving notice of preliminary objection is to give the adversary an opportunity of reacting to the objection and to avoid any surprise.”
– PER F. O. OHO, J.C.A
FUNCTUS OFFICIO – WHEN IS A COURT SAID TO BE FUNCTUS OFFICIO?
“A Court is said to be “functus officio” in respect of a matter if the Court has fulfilled or accomplished its function finally in respect of that matter and it thus lacks the jurisdiction to review, reopen or revisit the matter. It is therefore settled law that once a Court delivers its judgment or makes any order which finally determines a matter before it, it becomes “functus officio” and the Court is precluded from reviewing or varying such judgment or order except to effect corrections of clerical mistakes or accidental slips or where such judgment or order was obtain by fraud, in which case, the judgment or order can be set aside upon a proper application of the adverse party. See amongst an army of judicial authorities, the cases of: (1) Edo-Osagie & Ors. v. Commissioner of Lands, Mid-Western State of Nigeria (1973) LPELR-24932 (SC;) (2) Nigerian Army v. lyela (2008) LPELR-2014 (SC); (3) Citec Int’l Estate Ltd.& Ors. v. Francis & Ors. (2014) LPELR-22314 (SC)and(4) Enterprises Bank Ltd. v. Aroso & Ors. (2015) LPELR- 24720 (SC). – PER F.OMOLEYE, J.C.A
BREACH OF FAIR HEARING – WHAT CONSTITUTES A BREACH OF FAIR HEARING? – DUTY OF A PARTY ALLEGING A BREACH OF HIS RIGHT TO FAIR HEARING
“In line with the evidential burden of proof, the position of the law is that it is the duty of the party alleging the breach of his right to fair hearing to prove the allegation from the record of proceedings of the Court in which the alleged breach or denial occurred, since a breach or denial usually occurs in the procedure used or adopted in the conduct of the proceedings. Hence, once it is established that such a breach or denial occurred, the entire proceedings are rendered invalid and the appellate Court has a legally bounden duty to set aside such proceedings in its entirety as the proceedings will be prejudicial to and constitute an infringement of the inviolable fundamental human rights to fair hearing, of the party who had suffered the breach or denial, enshrined under Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999, as amended. However, as in the instant matter, it is not sufficient for a party to merely make an allegation of breach of denial of fair hearing in the conduct of proceedings of a Court without going further to show the manner in which the breach or denial occurred from the record of proceedings of the Court. On what constitutes a breach or denial of fair hearing to a party in a case, the Supreme Court in the case of: Ejeka v. State (2003) 7 NWLR (Pt.819) p.408 per Tobi, JSC (of blessed memory) reiterated the very trite legal position thus:
“The principle of fair hearing is breached where parties are not given equal opportunity to be heard in the case before the Court. Where the case presented by one party is not adequately considered, the affected party can complain that he was denied fair hearing. Fair hearing is not an abstract term that a party can dangle in the judicial process but one which is real and which must be considered in the light of and circumstances of the case. A party who alleges that he was denied fair hearing must prove specific act or acts of such denial and not a mere agglomeration of conducts which are merely cosmetic and vain”
See also the cases of: (1) Denloye v. Medical and Dental Practitioners Disciplinary Committee (1968) LPELR-255206 (SC); (2) Magaji v. Nigerian Army (2008) LPELR-1814 (SC); (3) Ukwuyok v. Ogbulu (2010) 5 NWLR (Pt.1187) p.316 at p.346; (4) MFA & Anor. v. Inongha (2014) LPELR-22010 (SC) and (5) Ardo v. INEC & Ors. (2017) LPELR-41919 (SC). – PER F.OMOLEYE, J.C.A
ABUSE OF COURT PROCESS – FEATURES OF ABUSE OF COURT PROCESS
“Furthermore, the point of an abuse of the process of the trial Court raised by the Respondent being an issue of law can be raised anyhow and at any time, even on appeal for the first time. That is the trite position of the law. Moreover, the Appellant was given an opportunity to be and was actually heard on the issue at the trial Court. Abuse of the use of judicial process is an improper use of judicial process in litigation. However, the employment of the judicial process is only regarded generally as an abuse when a party improperly uses the judicial process to the irritation on annoyance of his opponent; and to clog the wheels of the efficient and effective administration of justice. Thus, multiplicity of actions on the same subject-matter between the same parties even where there exists a right to bring the action is regarded as abuse of judicial process. The abuse thus lies in the multiplicity and manner of the exercise of the right, rather than “per se” the exercise of the right itself. Some of the well recognised features of an abuse of judicial process are succinctly reiterated again by the Apex Court in the case of: Allanah & Ors. v. Kpolokwu & Ors. (2016) LPELR -40724 per Sanusi, JSC (Rtd.) as follows:
“Some of the features of abuse of Court process include the under mentioned features: even though they are be no means exhaustive. These features are: (i) Filing of multiplicity of actions on the same subject-matter against the same opponent on the same issues or numerous actions on the same matter between the same parties even where there is in existence, a right to commence the action; (ii) Instituting different actions between the same parties simultaneously in different Courts even though on different grounds.(Hi) Where two or more similar processes are used in respect of the exercise of the same right, for instance, a cross appeal and Respondent’s notice, (iv) Where two actions are instituted in Court, the second one asking for relief which may however be obtained in the first, the second action is, prima facie vexatious and an abuse of Court process. See the cases Okorocha v. PDP (2014) 7 NWLR (Pt.4406) p.213; Saraki v. Kotoye (1962) 9 NWLR (Pt.204) p. 156; Ogoejiofor v. Ogoejiofor (2006) 3 NWLR (Pt.996)p.206.J’
See also the cases of.(1) Oyeyemi& Ors. v. Owoeye & Anor. (2017) LPELR-41903 (SC) and (2) PDP & Anor. v. Umeh & Ors. (2017) LPELR-42023 (SC). PER F.OMOLEYE, J.C.A
ABUSE OF JUDICIAL PROCESS –DUTY OF COURTS WHEN IT IS SATISFIED THAT AN ACTION AMOUNTS TO AN ABUSE OF JUDICIAL PROCESS
“The law is also firmly settled that once a Court is satisfied that an action before it amounts to an abuse of judicial process, it has the legally bounden duty invoke its coercive power to sanction the party which is in abuse of its process with the dismissal of the action which constitutes the abuse. See the cases of: (1) Arubo v. Aiyeleru (1993) 3 NWLR (Pt.280) pA25; (2) Adesanoye v. Adewole (2000) 9 NWLR (Pt.127) p.671; (3) Igbeke v. Okadigbo & Ors. (2013) 12 NWLR (Pt.1368) p.225 and (4) Lokpobiri v. Ogola (2015) LPELR-40838 (SC). – PER F.OMOLEYE, J.C.A