CORAM
OBANDE FESTUS OGBUINYA JUSTICE, COURT OF APPEAL
FREDRICK OZIAKPONO OHO JUSTICE, COURT OF APPEAL
MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL
PARTIES
1. PEEWEE MARINES LTD.
2. PAUL WATSON UGBOMAH
APPELLANTS
1. JOYCE OGHENEKOMA AFIARI
2. HENRY – OTIS AMURUN
RESPONDENTS
AREA(S) OF LAW
APPEAL, CONSTITUTIONAL LAW, CONTRACT, EVIDENCE, PRACTICE AND PROCEDURE
SUMMARY OF FACTS
The appellants and the respondents were the defendants and the claimants respectively at the lower court (High Court of Lagos State). Sometime in early 2009, the respondents, both lawyers, separately paid N2M each to the first appellant, which had the second appellant as its Chairman and Chief Executive Officer, for fish allocation deposit investment. It was agreed that the appellants would pay the respondents, the depositors, 10% commission on the principal sum every month. The appellants did not live up to the terms of the agreement as they made epileptic and staggered payments of the commissions, sometimes incomplete sum, to the respondents. The appellants failed to pay off their indebtedness, the principal sums and accumulated commissions, to the respondents despite repeated demands. Sequel to that default, the respondents beseeched the lower court. In reaction, the appellants, upon service of the processes on them, were inclined to have the matter settled amicably out of the court. When the respondents perceived that the appellants were unserious about amicable settlement, they filed a motion for final judgment on 9 th February, 2012. The Appellants made an application to defend their case but the said application was not considered. In a considered ruling, delivered on 8 th October, 2012, the lower court granted the application and entered judgment against the appellants and in favour of the respondents. The appellants were dissatisfied with the decision hence the instant appeal.
HELD
Appeal allowed
ISSUES
Whether the judgment delivered by the lower court on 8th October 2012 after the statement of defence was filed is a judgment on the merit and infringes on the appellants right to fair hearing as enshrined in the 1999 Constitution (as amended)?
RATIONES DECIDENDI
FAIR HEARING – MEANING OF FAIR HEARING – FEATURES/ATTRIBUTES OF FAIR HEARING
By way of prefatory remarks, fair hearing denotes a trial which is conducted in accordance with all the legal rules formulated to ensure that justice is done/dished out to parties to the case, see Eze v. FRN (2017) 15 NWLR (Pt. 1589) 433; Ardo v. INEC (2017) 13 NWLR (Pt. 1583 450; Regt. Trustees, P.C.N. v. Etim (2017) 13 NWLR (Pt. 1581) 1; Akingbola v. FRN (2018) 14 NWLR (Pt. 1640) 395; La Wari Furniture & Baths Ltd. v. FRN (2019) 9 NWLR (Pt. 1677) 262. Being the cynosure of the vexed issue, it is germane to display some of the notable features of fair hearing, which has become a commonplace in law, which competes with jurisdiction for prominence in adjudications nowadays.
The ancient concept of fair hearing traces its pedigree to divinity. It was a common law doctrine which has metamorphosed into our jurisprudence and, firmly, enshrined in section 36(1) of the Constitution, as amended. It donates to the citizens the inviolate right to ventilate their grievances on the altar of the two concrete pillars of natural justice: audi alteram partem – hear the other side – and nemo judex in causa sua – no one should be a judge in his own case. The whole essence of fair hearing, which is coterminous with fair trial, connotes giving parties to any proceedings, be it judicial, quasi-judicial or administrative body, an equal opportunity to present their cases. It follows that fair hearing is, totally, divorced from correctness of a decision. It centres on the cardinal principle that a fair-minded person who watched the proceedings, before a court or administrative or quasi judicial body, should conclude that it exhibited even handedness/fairness in apportioning justice to the parties, see O.O.M.F. Ltd v. NACB (2008) 12 NWLR (Pt. 1098) 412; Nwanegbo v. Olawole (2011) 37 WRN 101; Kim v. State (1992) 4 NWLR (Pt. 233) 17; Newswatch Comm. Ltd. v. Atta (2006) 12 NWLR (Pt. 993) 144; FRN v. Akabueze (2010) 17 NWLR (Pt. 1223) 525; S & D Const. Co. Ltd. v. Ayoku (2011) 13 NWLR (Pt. 1265) 487; Ovunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522; Nigeria Navy v. Labinjo (2012) 17 NWLR (Pt. 1328) 56; J.S.C., Cross River State v. Young (2013) 11 NWLR (Pt. 1364) 1; Mpama v. FBN Plc (2013) 5 NWLR (Pt. 1346) 176; Aba b. Monday (2015) 14 NWLR (Pt. 1480) 569; Gov., Zamfara State v. Gyalange (2013) 8 NWLR (Pt. 1357) 462; Achuzia v. Ogbomah (2016) 11 NWLR (Pt. 1522) 59; Danladi v. Dangari (2015) 2 NWLR (Pt. 1442) 124; Labour Party v. Bello (2017) 2 NWLR (Pt. 1548) 148; Darma v. Ecobank (Nig.) Ltd. (2017) 9 NWLR (Pt. 1571) 480; Olayioye v. Oyelaran I (2019) 4 NWLR (Pt. 1662) 351.
The case-law has invented essential attributes of fair hearing as provided in section 36 (1) of the Constitution, as amended. These characteristics are calibrated thus, videlicet: (a) That the court shall hear both sides not only in the case but also on all material issues in the case before reaching a decision which may be prejudicial to any party in the case. (b)That the court or tribunal gives equal treatment, opportunity and consideration to all concerned. (c) That the proceedings be heard in public and all concerned shall be informed of and have access to such place of hearing.(d) That having regard to all circumstances in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done. See Kotoye v. CBN (1989) 1 NWLR (Pt. 98) 419; S & D Const. Co. Ltd. v. Ayoka (2011) 13 NWLR (Pt. 1265) 487; Darma v. Ecobank (Nig. Ltd.) (2017) NWLR (Pt. 1571). – Per O. F. Ogbuinya, JCA
APPLICATIONS – DUTY OF COURTS TO HEAR ALL EVERY APPLICATION PLACED BEFORE IT
It is apropros, at this juncture, to place on record, pronto, that applications constitute an indispensable segment of our adversarial judicial system see C.C.B. (Nig.) Plc v. Ozobu (1998) 3 NWLR (Pt. 541) 290; Odedo v. Oguebego (2015) 13 NWLR (Pt. 1476) 229. It is settled law, beyond any peradventure of doubt, that a court, whether trial or appellate, is, heavily, ladened with the bounden duty to hear every application placed before it. This is so even if such application is frivolous, an abuse of court, an unreasonable process, downright stupid, unmeritorious, weak or manifests any defects in it. This duty is not optional. The success or failure of such application is immaterial. The duty is to ensure the preservation and enforcement of a party’s right to fair hearing, see Kotoye v. Saraki (1991) 8 NWLR (Pt. 211) 638; Eke v. Ogbonda (2006) 18 NWLR (Pt. 1012) 506; Nalsa and Team Associates v. NNPC (supra); Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587; Mobil prod. (Nig.) Unltd. v. Monokpo (2003) 18 NWLR (Pt. 852) 346; Odedo v. Oguebego (supra); Ogunseinde v. SGB Ltd. (2018) 9 NWLR (Pt. 1624) 230; Adebiyi v. Adehanbi (2018) 16 NWLR (Pt. 1645) 242; C. & C. B. Dev. Co. Ltd. v. Min., E.H. & U.D. (2019) 5 NWLR (Pt. 1666) 484; Transnav P.N. Ltd. v. Velian E.H.D. Ltd (2020) 7 NWLR (Pt. 1723) 293; Nal. Ear Care Centre v. Nnadi (2021) 17 NWLR (Pt. 1805) 365.
By the same token, the law imposes an obligatory duty on every court of law to dispense/treat all applications pending before it before it reaches a final decision in any matter or appeal. It is, therefore, a serious affront to the law for any court to leave any pending applications unattended to while it arrives and delivers its final decision in any proceeding. It is a basic right of every party in a matter. It is of no moment that the application was not brought to theattention of the court timeously especially when it has a bearing on the judgment, see Irolo v. Uka (2002) 14 NWLR (Pt. 786) 195; A.- G., Fed. V. AIC Ltd. (2002) FWLR (Pt. 26) 1744; FAAN v. Wamal Express Services (Nig.) Ltd. (2011) LPELR-1261 (SC); PDP v. Ezeonwuka (supra); Mobil Prod. (Nig.) Unltd. v. Monokpo (supra). – Per O. F. Ogbuinya, JCA
MOTION – THE REQUIREMENT OF MOVING MOTIONS
In the province of our adjectival law, which is properly sheltered and firmly propagated in our adversarial system of adjudication, application or motion, as it is commonly called, is not self- executory. That is to say, whether on notice or ex-parte, it has to be moved or argued by its owner in the manner ordained by the law. If it is on notice, then there is, usually, a corresponding response, either in agreement or opposition, by the adversary/opponent. In law, a party or his counsel has to move the court to grant the relief in the motion except he moves in terms of the motion, see Society BIC S.A. v. Charzin Ind. Ltd. (2014) 4 NWLR (Pt. 1398) 504. – Per O. F. Ogbuinya, JCA
DETERMINATION – MEANING OF DETERMINATION AND DUTY OF COURTS TO DETERMINE ALL APPLICATIONS
A determination, in a law, connotes “the settling of a controversy by a judicial decision, a coming to a decision”, see Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205 at 263, per Nweze, JSC. There is no gainsaying the fact that the appellants, whose application was targeted at bringing in their defence before the lower court, were entitled, ex debito justitiae, to its determination and decision or pronouncement thereon, one way or the other, on its fortune. In point of fact, the law compels the lower court to rule or making a finding on the application, see Odunukwe v. Ofomata (2010) 18 NWLR (Pt. 404; Aba v. Monday (2015) 14 NWLR (Pt. 1480) 569; Ikpeazu v Otti (2016) 8 NWLR (Pt. 1513) 38. – Per O. F. Ogbuinya, JCA
FAIR HEARING – DUTY OF COURTS TO UPHOLD THE PRINCIPLE OF FAIR HEARING – WHEN THE COURT FAILS TO UPHOLD FAIR HEARING
It is remarkable that the constitutional doctrine of fair hearing, which owes its paternity to divinity, mandates the courts, on all the rungs of the judicial ladder, to always create a congenial, egalitarian and hospitable milieu for parties to ventilate their perceived and nursed grievances in the temple of justice. It decrees, under pain of nullity of proceeding in default, that courts shall accord equal treatment, opportunity and consideration to the cases of parties. In the Latin days of the law, it was encapsulated in the maxim: Audi alteram partem. In the determination of legal rights of parties, justice must not only be done but must be manifestly and undoubtedly seen to be done. Indubitably, the decision, which acquired the undignified status of a lopsided decision, treated the principles of fair hearing with disdain and contempt. In the glaring absence of the lower court’s consideration, nay, pronouncement, on the appellants’ application, which cried for its attention, the lower court’s decision, unjustifiably, trampled, curtailed and fractured the appellants’ inalienable right to fair hearing as ingrained in the sacrosanct provision of section 36(1) of the Constitution, as amended, the fons et origo of all laws. It qualifies as a pessimi exempli of unwarranted erosion of the appellants’ inviolate to fair hearing with the caustic consequences appurtenant thereto. Put simply, the appellants discharged the burden to prove a denial of fair hearing which the law has cast on them, see Maikyo v. Itolo (2007) 7 NWLR (Pt. 1034) 443; S & D Const. Co. Ltd. v. Ayoka (2011) 13 NWLR (Pt. 1265) 487. The law does not mandate the appellants to prove the damages or losses they incurred consequent upon the breach of its right to fair hearing, see Oshiomhole v. Airhiavbere (2013) 7 NWLR (Pt. 1353) 376; Olayioye v. Oyelaran I (supra). A proof of breach of right to fair hearing, as happened in the case which parented the appeal, carries with it a miscarriage of justice. Put differently, a miscarriage of justice is inherent in a breach of a right to fair hearing, see Mpama v. FBN Plc. (supra); Eze v. Unijos (2017) 17 NWLR (Pt. 1593) 1; N.U.T, Taraba State v. Habu (supra); Thomas v. FJSC (2019) 7 NWLR (Pt. 1671) 284. – Per O. F. Ogbuinya, JCA
NULLITY – MEANING OF NULLITY – THE CONSEQUENCE OF A NULLITY
In the eyes of the law, nullity denotes: “Nothing; no proceeding; an act or proceeding in a case which the opposite party may treat as though it had not taken place; or which has absolutely no legal force or effect”, see Lasisi v. State (2013) 12 NWLR (Pt. 1367) 133 at 146, per Ngwuta JSC; Ezenwaji v. U.N.N. (supra); Mamman v. Hajo (2016) 8 NWLR (Pt. 1575) 411. The dire consequence of a nullity is far-reaching. If a decision or proceeding is plagued by nullity, it is void and taken as it was never given or made, see Okoye v. Nigeria Const. & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501; Bello v. INEC (2010) 8 NWLR (Pt. 1196) 342. Moreover, such a null decision or proceeding, in the view of the law, bestows no enforceable right on its beneficiary party, who possesses it, nor does it impose any obligations on its victim party, see Ajibola v. Ishola (2006) 13 NWLR (Pt. 998) 628; Oyeneyin v. Akinkugbe (2010) 4 NWLR (Pt. 1184) 265. The bounden duty of a court is to, ex debito justitiae, set aside a null order in that it does not exist in law, see Mamman v. Hajo (supra); N.A.C.B. Ltd. v. Ozoemelam (2016) 9 NWLR (Pt. 1517) 376; Oyeyemi v. Owoeye (2017) 12 NWLR (Pt. 1580) 364. – Per O. F. Ogbuinya, JCA
FAIR HEARING – THE ORDER TO MAKE WHEN A PARTY’S RIGHT TO FAIR HEARING HAS BEEN BREACHED – CONDUCT OF APPELATE COURTS AFTER ORDERING A DE NOVO HEARING
My noble Lords, for the sake of completeness, the order to make when a person breaches a party’s unassailable right to fair hearing, as engraved in section 36(1) of the Constitution, as amended, is not a moot law. The settled position of the law is that: “once there is such a denial of the said right {right to fair hearing} the only order that could be made on appeal is one for re- trial or re-hearing. This is to enable the appellant to be properly heard,” see Kalu v. State (2017) 14 NWLR (Pt. 1586) 522 at 547, per Nweze, JSC; Danladi v. Dangiri (2015) 2 NWLR (Pt. 1442) 124; C.K. & W.M.C. Ltd. v. Akingbade (supra); Akingbola v. FRN (supra); Ahmed v. Read Trustees, AKRCC (2019) 5 NWLR (Pt. 1665) 300; Fapohunda v. R.C.C.N. Ltd. (2019) 3 NWLR (Pt. 1658) 163; Obasan v. Abudu (2023 – 03) Legalpedia – 50272 (SC). Furthermore, once an appellate court intends to order, or orders, for a de novo hearing, the law forbids it from treating any other issues or points in the appeal that may arise at the rehearing proceedings, see C. K. & W.M.C. Ltd. v. Akingbade (supra); Ovunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522; Karaye v. Wike (2019) 17 NWLR (Pt. 1701) 355. – Per O. F. Ogbuinya, JCA
FAIR HEARING – WHEN A PARTY’S RIGHT TO FAIR HEARING IS FLOUTED
It is an elementary law that where a party’s inviolable right to fair hearing is flouted, as in this case, no matter the quantum of fair-mindedness, dexterity, artistry and objectivity injected into the proceeding hosting the breach, it will be mired in the quicksand of nullity, see Nyeson v. Peterside (2016) 7 NWLR (Pt. 1512) 452; C.K & W. M. C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487; Eze v. Unijos (supra); Ezenwaji v. U.N.N. (2017) 18 NWLR (Pt. 1598) 485; Poroye v. Makarfi (2018) 1 NWLR (Pt. 1599) 91; APC v. Nduul (2018) 2 NWLR (Pt. 1602) 1; S.A.P. Ltd. v. Min., Petroleum Resources (2018) 6 NWLR (Pt. 1616) 391; Zenith Plastics Ind. Ltd v. Samotech Ltd. (2018) 8 NWLR (Pt. 1620) 165; Olayioye v. Oyelaran I (supra), La Wari Furniture & Baths Ltd. v. FRN (supra). This is a confluence point where want of fair hearing and jurisdiction embrace themselves to vitiate proceedings that give birth to a denial of fair hearing, see O.O.M.F. Ltd. v. NACB Ltd. (supra); Ovunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522; Achuzia v. Ogbomah (supra); Apeh v. PDP (2016) 7 NWLR (Pt. 1510 153; Aba v. Monday (2015) 14 NWLR (Pt. 1480) 569. – Per O. F. Ogbuinya, JCA
CASES CITED
NOT AVAILABLE
STATUTES REFERRED TO
1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. High Court of Lagos State (Civil Procedure) Rules 2004
3. High Court of Lagos State (Civil Procedure) Rules, 2012