EMEKA v. IDRIS (2020)

EMEKA v. IDRIS

(2020)LCN/14206(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Thursday, May 28, 2020

CA/K/297/2017

Before Our Lordships:

Hussein Mukhtar Justice of the Court of Appeal

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Between

ONWURAH EMEKA APPELANT(S)

And

JAMILU IDRIS RESPONDENT(S)

RATIO

WHETHER OR NOT PROLIFERATION OF ISSUES IS ALLOWED BY THE COURT

Proliferation of issues has never received a nod by the Courts. It is better to have more grounds of appeal than the issues formulated and not the other way round. After all issues are based upon and flow from the grounds of appeal hence one cannot have more issues than grounds of appeal. Any proliferated issue shall be deemed to be in excess and be discountenanced or struck-out as being superfluously offensive. See Carlen Ltd. v. Unijos (2000) 19 WRN 167; (1994) 1 NWLR (Pt. 323) page 631; Fawehinmi v. Akilu (1987) 4 NWLR (Pt. 67) page 797; Chevron Nig. Ltd. v. Onwugbelu (1996) 3 NWLR (Pt. 437) page 404. PER MUKHTAR, J.C.A.

WHETHER THE COURT CAN SUO-MOTU RAISE AN ISSUE

When a Court raises a point suo motu, the parties must be given an opportunity to be heard on the particular point so that none of the parties may suffer prejudice as a result of the issue raised suo motu. See Odiase V Agbo (1972) 1 All NLR Part 1 page 170, Ajao V Ashiru (1973) 11 SC 23, Atanda V. Lakanmi (1974) SC 109, Adegoke V. Adibi (1992) 5 NWLR PART 242 PAGE 140.
Much as the Court was entitled to raise any relevant issue suo motu, the parties to the proceedings were correspondingly entitled to be afforded an opportunity to address the issue before the Court takes a decision one way or the other thereon. In the instant case, this rule of fair hearing was observed in breach. The decision of the Court below on the issue raised suo motu was therefore perverse and liable to be set aside. See Okafor V. Nnaife (1972) 3 ECSLR 261, Ugo V. Obiekwe (1989) 1 NWLR part 99 page 566 at 578. If it does so it will be in breach of the party’s right to fair hearing. See Oje V Babalola (1991) 4 NWLR part 185 page 267 at 280.
Where a Court raises a new issue suo motu, it must give the parties the opportunity to address it before a decision is reached thereon. Failure to invite counsel to address the issue raised suo motu, renders the decision of the Court below, predicated on that issue, perverse. PER MUKHTAR, J.C.A.

PLEADINGS: WHETHER ISSUES RAISED SUO MOTU BY THE COURT CAN BE CANVASSED BY THE PARTIES

The sole issue formulated by my learned brother, culled from the issues raised by the parties, is:
Whether the learned trial justices of the High Court of Justice (Zarla Appeals session) can suo motu raise the issue of fraud and purported publication of exhibit A1 to an unnamed third party which were never raised or mentioned by PW1 and PW2 in their evidence and the Chief Magistrate in arriving at their judgment of 13/4/2016 without calling parties to address the Court and whether same has not occasioned miscarriage of justice and breach of the Appellant’s right to fair hearing constitutionally guaranteed. It is undoubted, from the proceedings before the lower Court, that this issue raised above was neither raised nor canvassed by the parties. While the lower Court, just like appellate Courts, has the right to raise issues suo motu, it is imperative that parties be given the opportunity to address it thereon, in order not to breach the rule of fair hearing which will vitiate such proceedings and must be set aside on appeal. See Yar’Adua v. Yandoma (2015) 4 NWLR Part 1448 Page 795-196 Para C-C per Mary Peter-Odili JSC: Oguebego v.Peoples Democratic Party (2016) 4 NWLR Part 1503 Page 446 at 482- 483 Para C-A per Okoro JSC. PER ADEFOPE-OKOJIE, J.C.A.

HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment): The Appellant and Respondent were colleagues working with Ecobank Nigeria Ltd, Zaria branch, Kaduna State. The Appellant was a resident internal control officer of the bank, who sent an email letter (EXHIBIT A3) to the Respondent; a customer relationship/loan officer of Ecobank Nigeria Ltd seeking for clarifications in respect of some work related issues. The Respondent replied to the email but before the conclusion of the investigations, the Respondent voluntarily resigned his appointment with Ecobank Nigeria Ltd, without notice as admitted in his evidence during cross examination.

Thereafter the Respondent, through his counsel, caused a criminal summons under Sections 180 and 391 of the Penal Code Law of Kaduna State to be issued against the Appellant. The Appellant was alleged to have defamed the Respondent and that it had also caused the Respondent to lose his job.

The accusation against the Appellant was founded on the allegation that the Respondent had collected bribe and opened illegal account for a customer as a result of which the Appellant called the Respondent, together with the

Staff from whom he got the information to his office, where the Appellant enquired whether the Respondent collected money from a customer to open an account for him, with the bank, in a different name from his. The Respondent denied doing so.

The customer named Saidu Tanko Basawa, confirmed giving the sum of Four Hundred and Fifty Thousand Naira (N450,000.00) as gratification for opening the said account for the purpose of opening an account for him in another name than his own to Tijjani Abubakar and Tolani.

The Resident Internal Control Officer of the Bank queried the Appellant following which the management of the bank, without further ado, terminated the Appellant’s employment by serving him a letter captioned “Your Services are not longer required”.

The Respondent further filed a case of criminal defamation against the Appellant before the Chief Magistrate Court. After the testimony of the two prosecution witnesses, the Appellant filed and argued a no case submission, which was over ruled by the trial Chief Magistrate.

The Appellant was thereby disgruntled and therefore appealed to High Court of Kaduna State, which after hearing the

appeal, in its Zaria appeal session, dismissed the appeal on 13th April 2016 for lacking in merit. The Appellant further appealed to this Court by filing a Notice of Appeal predicated on three grounds as follows:
GROUND ONE
The learned Presiding Justice MTM Aliyu and Binta Zubairu (member) erred in law when they dismissed the appellant’s appeal on a No Case Submission which was overruled by the trial Chief Magistrate, Ibrahim Musa Esq sitting at Chediya Road GRA, Zaria, Kaduna State without justification to so do thereby occasioned a grave miscarriage of justice.
GROUND TWO
The learned judges of the High Court of Justice Zaria, Kaduna State (appellate session) erred in law when they suo motu raised the issue of fraud and publication of the alleged defamatory material – exhibit A3, when there was no justification to do so and thereby breached the appellant’s right to fair hearing and thereby occasioned a grave miscarriage of justice.
GROUND THREE
The learned judges of the lower High Court in its appellate session erred in law by holding that the defence of justification can only avail the appellant at the

conclusion of trial when there was no evidence in the printed record to warrant such conclusion.

However, the learned counsel for the Appellant Vincent Soligbi, Esq raised five (5) issues for determination from the foregoing three grounds of appeal, thus:
1. Whether the essential ingredient of publication of a defamatory material to a named third party has been established by PW1 and PW2 to establish a prima facie case of the commission of criminal defamation (Ground 1).
2. Whether an internal email memo/official letter (exhibits A3) written to the respondent alone based on the Appellant ‘s official duty and qualified privilege which the respondent reciprocally replied to via exhibit A1 can sustain the offence of criminal defamation. (Ground 1).
3. Whether from the record of proceedings the contradictory and unreliable evidence adduced by PW1 and PW2 have been discredited by cross examination to warrant the overruling of the No case submission (Ground 2).
4. Whether the learned trial justices of the High Court of Justice (Zaria Appeals session) can suo motu raise the issue of fraud and purported publication of exhibit A1 to an unnamed

third party which were never raised or mentioned by PW1 and PW2 in their evidence and the Chief Magistrate in arriving at their judgment of 13/4/2016 without calling parties to address the Court and whether same has not occasioned miscarriage of justice and breach of the Appellant’s right to fair hearing constitutionally guaranteed. (Ground 2 and 3).
5. Whether Section 391 of the Penal Code Law clearly provides for exceptions to the offence of criminal defamation (libel) and whether the respondent can constitutionally investigate and prosecute criminal offences in Nigeria in the absence of any fiat from the office of the Attorney General of Kaduna State. (Ground 1).

Issues 1, 2 and 5 were raised by the Appellant from ground 1, while issues 3 and 4 were raised from ground 2. These issues were clearly proliferated due to multiplicity of issues raised from same or common grounds of appeal. The law is elementary that no more than one issue may be raised from any ground of appeal. While raising one issue from more than one ground of appeal is permissible, the reverse is not. Thus, a situation where a party filed three grounds of appeal and formulated five

issues for determination has always been frowned upon by the Courts.
Proliferation of issues has never received a nod by the Courts. It is better to have more grounds of appeal than the issues formulated and not the other way round. After all issues are based upon and flow from the grounds of appeal hence one cannot have more issues than grounds of appeal. Any proliferated issue shall be deemed to be in excess and be discountenanced or struck-out as being superfluously offensive. See Carlen Ltd. v. Unijos (2000) 19 WRN 167; (1994) 1 NWLR (Pt. 323) page 631; Fawehinmi v. Akilu (1987) 4 NWLR (Pt. 67) page 797; Chevron Nig. Ltd. v. Onwugbelu (1996) 3 NWLR (Pt. 437) page 404.
The proliferated issues 1, 2, 3 and 5 were distilled repeatedly raised from common grounds 1 and 2. However, issue 4 raised from grounds 2 and 3 and may be saved by ground 3, from which no other issue has been raised. The Courts attitude on proliferation of issues has been to strike out the excess and/or offending issues. Accordingly issues 1, 2, 3 and 5 are hereby struck-out for offending the rule against proliferation. The only live issue remaining is issue 4,

which is at the risk of repetition is reproduced thus:
Whether the learned trial justices of the High Court of Justice (Zaria Appeals session) can suo motu raise the issue of fraud and purported publication of exhibit A1 to an unnamed third party which were never raised or mentioned by PW1 and PW2 in their evidence and the Chief Magistrate in arriving at the judgment of 13/4/2016 without calling parties to address the Court and whether same has not occasioned miscarriage of justice and breach of the Appellant’s right to fair hearing constitutionally guaranteed. (Ground 2 and 3).

Coincidently, the learned counsel for the Respondent G. M. Sadeeq, Esq. was on common ground by adopting the same issues raised by the Appellant’s counsel hook, line and sinker. His stance therefore, cannot but suffer the consequence.

On the live lone issue, the Appellant’s counsel argued that the issues and arguments canvassed by counsel on both sides were all abandoned and discountenanced by the learned judges of the Court below, who suo motu raised an issue not canvassed by parties that exhibit A3 was copied to one Godfrey Ogbuti. There is nowhere in the

evidence of the respondent and PW2, as contained in the record of proceedings, where the issue of Godfrey Ogbuti came up as having read exhibit A3. It was the Court below that raised and decided same issue suo motu without the parties being called upon to address the issue. That the said Godfrey Ogbuti was never called to give evidence of whether he saw and if it was tantamount to publication of defamatory material, which is a sine qua non to establish a prima facie case of defamation against the appellant.

It was submitted that a Court of law is not inquisitorial and that a Court has no power in its own discretion to concoct evidence not adduced before it by the parties and rely upon same suo motu to decide on same without input by the parties to the proceedings. See Aiyetoro Comm. Trading Co. Ltd v. NACB Ltd (2003) 12 NWLR (part 834) p 346 at page 376 para D where it was held inter alia that:
“A judge in a … case has no power to personally obtain and rely on evidence not adduced before him by the parties. This is because … investigation is not the function of a judge.”

Similarly, in the case of

IMB Securities Ltd V. Bola Tinubu (2001) 8 NSCQR page 1 at page 1 at page 13 para F – H and at p 14 paras A – F, the apex Court held thus:
“Before I turn to Section 308(1)(a) of the Constitution around which dispute has arisen between the parties in this appeal, it is pertinent to dispose of the submission of learned counsel for the appellant that the decision of the Court of Appeal now challenged is a nullity by virtue of the fact that it was based on grounds not relied upon by the respondent but that they were raised suo motu by that Court without affording the parties an opportunity to be heard thereupon.”

It was submitted for the Appellant that judgment in any Court proceedings must be confined to the issues therein raised by the parties and that it is not competent for the Court to suo motu make a case for either of the parties and to proceed to give judgment on the case so formulated, contrary to the case of the parties before it. See Commissioner for Works Benue State & Anor V. Devcon Development Consultants Ltd & Anor (1988) 3 NWLR Part 83 Page 407, Adeniji V. Adeniji (1972) 1 All NLR Part 1 page 278

and ACB V. Attorney General Northern Nigeria (1969) NMLR page 231. See too Shitta Bey V. Federal Public Service Commission (1981) 1 SC 40.

It was further submitted for the Appellant, that a Court of law particularly an appellate Court must hear and decide issues raised from the grounds of appeal filed before it, and not on any extraneous issue. See Management Enterprises V. Jonathan Otusanya (1987) NWLR part 55, 179, Oniah V. Onyia (1989) 1 NWLR part 99 514 at 529, Adelaja V Fanoiki (1990) part 131 page 137 at page 148.

The Court was urged to resolve the issue in favour of the Appellant against the Respondent.

Conversely, it was argued for the Respondent that the learned judges the Court below did not suo motu raised the issue of publication of exhibit A1 to a 3rd party which was never mentioned by PW1 and PW2 in their testimony in Court and the Judges of High Court arriving in their judgment of 13/4/2016 without calling on the parties to address the Court.

It was submitted for the Respondent that the complaint before the Court of first instance was for offences under Section 180 and Section 391 of the Penal Code and that “fraud” was alleged against the Respondent in

exhibit A3 was a fact that gave rise to the complaint. That the issue of fraud was raised by the Respondent in his complaint.

It seems that the learned counsel for the Respondent had lost the track a bit. The issue allegedly raised suo motu by the Court below that was neither raised nor canvassed by parties was that exhibit A3 was copied to one Godfrey Ogbuti. It was argued that nowhere in the evidence of the respondent and PW2 as contained in the record of proceedings was the issue of Godfrey Ogbuti raised as having read exhibit A3.
When a Court raises a point suo motu, the parties must be given an opportunity to be heard on the particular point so that none of the parties may suffer prejudice as a result of the issue raised suo motu. See Odiase V Agbo (1972) 1 All NLR Part 1 page 170, Ajao V Ashiru (1973) 11 SC 23, Atanda V. Lakanmi (1974) SC 109, Adegoke V. Adibi (1992) 5 NWLR PART 242 PAGE 140.
Much as the Court was entitled to raise any relevant issue suo motu, the parties to the proceedings were correspondingly entitled to be afforded an opportunity to address the issue before the Court takes a decision one way or the other thereon. In the

instant case, this rule of fair hearing was observed in breach. The decision of the Court below on the issue raised suo motu was therefore perverse and liable to be set aside. See Okafor V. Nnaife (1972) 3 ECSLR 261, Ugo V. Obiekwe (1989) 1 NWLR part 99 page 566 at 578. If it does so it will be in breach of the party’s right to fair hearing. See Oje V Babalola (1991) 4 NWLR part 185 page 267 at 280.
Where a Court raises a new issue suo motu, it must give the parties the opportunity to address it before a decision is reached thereon. Failure to invite counsel to address the issue raised suo motu, renders the decision of the Court below, predicated on that issue, perverse.
The foregoing appraisal shows a compelling reason for the resolution of the lone issue in favour of the Appellant and against the Respondent. The appeal has merit and is hereby allowed.
The decision of the Court below, delivered on 13th April 2016, is accordingly set aside. In the stead thereof, the Hon. Chief Judge of Kaduna State shall assign another panel of judges to hear and determine the appeal from the Chief Magistrate’s Court.

In the circumstances, there shall be no order as to costs.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the judgment of my learned brother, Hussein Mukhtar, JCA.
I agree with my lord’s reasoning and conclusions and I have nothing useful to add.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the judgment of my learned brother, HUSSEIN MUKHTAR. JCA.

It is undoubted, from the proceedings before the lower Court, that this issue raised above was neither raised nor canvassed by the parties. While the lower Court, just like

appellate Courts, has the right to raise issues suo motu, it is imperative that parties be given the opportunity to address it thereon, in order not to breach the rule of fair hearing which will vitiate such proceedings and must be set aside on appeal. See Yar’Adua v. Yandoma (2015) 4 NWLR Part 1448 Page 795-196 Para C-C per Mary Peter-Odili JSC: Oguebego v.Peoples Democratic Party (2016) 4 NWLR Part 1503 Page 446 at 482- 483 Para C-A per Okoro JSC.

I concur with the decision of my learned brother, and set aside the decision of the lower Court, together with the consequential orders made by my learned brother. I also make no order as to costs.

Appearances:

VINCENT SOLIGBO, ESQ. For Appellant(s)

M. SADEEQ, ESQ. For Respondent(s)