SAMPOR & ORS v. NPA & ORS (2020)

SAMPOR & ORS v. NPA & ORS

(2020)LCN/15246(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, May 29, 2020

CA/L/998A/2014

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

1. J.S. SAMPOR 2. N.E. OTUALI 3. G.A. OJELABI 4. F. BEBETU APPELANT(S)

And

NIGERIAN PORT AUTHORITY 2. S.O. NTUKS 3. C.I. NWORGU 4. C. OKOCHA 5. A. ADUBE 6. A. ASHERI 7. C. AFUKAM 8. J. ONI 9. IKUJORE 10. C.C. OFOHA 11. S. ABA RESPONDENT(S)

RATIO

A PRELIMINARY OBJECTION

A preliminary objection is a specie of objection which, if sustained by a Court, will render further proceedings in a matter unnecessary, see Abe v. UniIlorin (2013) 16 NWLR (Pt. 1379) 183; APC v. INEC (2015) 8 NWLR (Pt. 1462) 531; Jim-Jaja v. C.P, Rivers State (2013) 6 NWLR (Pt. 1350) 225. For this reason, the law commands the Court to deal first with a preliminary objection when raised in any proceedings, see Uwazurike v. A.-G., Fed. (2007) 8 NWLR (Pt. 1035) 1; B.A.S.F. (Nig.) Ltd v. Faith Enterprises Ltd. (2010) 4 NWLR (Pt. 1183) 104; SPDCN Ltd v Amadi (2011)14 NWLR (Pt. 1266) 157; FBN Plc v. T.S.A. Ind. Ltd (2010) 15 NWLR (Pt. 1216) 247; Okereke v. James (2012) 16 NWLR (Pt. 1326) 339; APC v. INEC (Supra); Ogboru v. Uduaghan (2013) 1 NWLR (Pt. 1311) 357; Efet v. INEC (2011) 7 NWLR (Pt. 1247) 423; Sa’eed v. Yakowa (2013) 7 NWLR (Pt. 1352) 133; Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113; SPDCN Ltd. v. Agbara (2016) 2 NWLR (Pt. 1496) 353; Agbaje v. INEC (2016) 4 NWLR (Pt. 1501) 151; Allanah v. Kpolokwu (2016) 6 NWLR (Pt. 1057) 1; Umanah (Jnr.) v. NDIC (2016) 14 NWLR (Pt. 1533) 458; Esuwoye v. Bosere (2007) 1 NWLR (Pt. 1546) 256; Achonu v. Okuwobi (2017) 14 NWLR (Pt. 1584) 142. I will obey this legal commandment so as not to insult the law. PER OGBUINYA, J.C.A.

THE CARDINAL PRINCIPLE OF JURISDICTION

Jurisdiction, a mantra in adjudication: connotes the authority/power of a Court to determine a dispute submitted to it by contending parties in any proceeding, see Ajomale v. Yaduat (No. 1)(1991) 5 SCNJ 172; Mobil Pro. Co. Unltd v. LASEPA (2002) 18 NWLR (Pt. 798) 1; Ndaeyo v. Ogunnaya (1977) 1 IM SLR 300; Ebhodaghe v. Okoye (2004) 18 NWLR (Pt. 905) 472; Society Bic S.A. v. Charzin md. Ltd. (2014) 4 NWLR (Pt. 1398) 497; Garba v. Mohammed (2016) 16 NWLR (Ct. 1537) 114; A. — G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; lsah v. INEC (2016) 18 NWLR (Pt. 1544) 175; Angadi v. PDP (2018) 15 NWLR (Pt. 1641)1.
A Court of law is invested with jurisdiction to hear a matter when: “1. it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and 2. the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and 3. the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction”, see Madukolu v. Nkemdilim (2006) 2 LC 208/(1961) NSCC (vol. 2) 374 at 379, per Bairamian F. J., Tukur v. Taraba State (1997) 6 SCNJ 81; Dairo v. UBN (2007) 16 NWLR (Pt. 1059) 164; Okereke v. Yar’ Adua (2008) 12 NWLR (Pt. 1100); Saraki v FRN (2016) 3 NWLR (Pt. 1500) 531; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80: Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Okpe v. Fan Milk Plc. (2017) 2 NWLR (Pt. 1549) 282; Bello v. Damisa (2017) 2 NWLR (Pt. 1550) 455; Osi v. Accord Party (2017) 3 NWLR (Pt. 1553) 387. These three ingredients must coexist in order to vest jurisdiction in a Court. PER OGBUINYA, J.C.A.

MEANING OF FAIR HEARING

Fair hearing connotes 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 cause, 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. PER OGBUINYA, J.C.A.

WHETHER OR NOT LEAVE SIGNIFIES PERMISSION

In the sight of the law, leave, in this context, signifies permission, seeS.U. Ojemen v. Momodu (1983) 1 SCNLR 188; Nwadike v. Ibekwe (1987)4 NWLR (Pt. 67) 7181(1987) 2 NSCC, Vol. 18, 1219; Garuba v. Omokhodion (2011) 14 NWLR (Pt.. 1269) 145; Otu v. ACB Int’l Ltd. (2008) 3 NWLR (Pt. 1073) 179. Where leave of Court, trial or appellate, is required for filing an action/process and a party ignores seeking and obtaining the requisite leave before filing same, the action/process is rendered incompetent, see UBA Plc. v. Sogunro (2006) 16 NWLR (Pt. 1006) 504; Garuba v. Omokhodion (supra); Thor Ltd. v. FCMB Ltd. (2002) 4 NWLR (Pt. 757) 427; Ugboaja v. Akitoye-Sowemimo (2008) 16 NWLR (Pt. 1113) 278; Akinyemi v. Odu’a mv. Co. Ltd. (2012) 17 NWLR (Pt. 1329) 209; Okwuagbala v. lkwueme (2010) 19 NWLR (Pt. 1226) 54; Nwaolisah v. Nwabufoh (2011) 14 NWLR (Pt. 1268) 600; Njemanze v. Njemanze (2013) 8 NWLR (Pt. 1356) 376; lmegwu v. Okolocha (2013) 9 NWLR (Pt. 1359) 347; Ugwu v. State (2013) 14 NWLR (Pt. 1374) 257; Ngere V. Okuruket ‘xiv’ (2014) 11 NWLR (Pt. 1417) 147; Ekunola v. CBN (2013) 15 NWLR (Pt. 1377) 224; Allanah v. Kpolokwu (2016) 6 NWLR (Pt. 1507) 1; Anachebe v. Ijeoma (2014) 14 NWLR (Pt. 1426) 168; B.B. Apugo & Sons Ltd. v. O.H.M.B. (2016) 13 NWLR (Pt. 1529) 6; Obasi v Mikson Est. Ind. Ltd. (2016) NWLR (Pt.1539) 335; Otti v Ogah (2017) 7 NWLR (Pt. 1563) 1; Sogunro v Yeku (2017) 9 NWLR (Pt. 1570) 290; Mato v. Hember (2018) 5 NWLR (Pt. 1612) 258. PER OGBUINYA, J.C.A.

THE ESSENCE OF FAIR HEARING

The whole essence of fair hearing, which is coterminous with fair trial, connotes giving parties to any proceedings, be it judicial or administrative, 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 feuding 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; Abah v. 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. Dangiri (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. PER OGBUINYA, J.C.A.

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal interrogates the correctness of the decision of the National Industrial Court of Nigeria, Lagos Division (hereinafter addressed as “the lower Court”) coram judice: Oyebiola O. Oyewumi, J., in Suit No. NICN/LA/171/2013, delivered on 27th May, 2014. Before the lower Court, the appellants and the respondents were the applicants and the respondents respectively.

The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity. In the first place, it must be placed on record, pronto, that the res in this appeal is not a stranger to litigation. Indeed, it is a magnet for litigation. This is an offspring of one of them. Way back in 1991, the first respondent retrenched about 301 of its staff without payment of their gratuities and pensions. Sequel to the denial, the second-eleventh respondents, as representatives of the laid off staff, including the appellants, sued the first respondent in the High Court of Lagos State, presided over by A. R.A. Sahid, J., in Suit No. LD/1827/92, and obtained judgment against it. The suit meandered to the Supreme Court of Nigeria which affirmed the judgment on 11th May, 2007. The eleventh respondent failed to comply with the judgment. As a result, the second-eleventh respondents beseeched Federal High Court, Lagos Division, via an originating summons filed on 5th May, 2008, for its enforcement.

Before the determination of the suit, the Federal High Court lost jurisdiction over the subject-matter which necessitated its transfer to the lower Court that acquired jurisdiction over it. The hearing of the suit commenced in the lower Court in March, 2013. The lower Court encouraged parties to settle the matter amicably. The parties reaped from the encouragement and began negotiations towards out-of-Court-settlement. The second-eleventh respondents and their unnamed representatives became divided on the quantum of sum to be paid by the first respondent. The disagreement occasioned about three splinter groups, the appellants being one of them, which rejected the Memorandum of Understanding (MOU) proposed by the second-eleventh respondents. The controversial MOU was used to draw the terms of settlement for the parties “with the exemption of those who have insisted on further litigation”. The terms of settlement were filed on 25th March, 2014. On 27th March, 2014, the lower Court made the terms of settlement consent judgment for the parties.

Prior to the consent judgment, the appellants had, on 13th January, 2014, filed an application to change counsel for the second-eleventh respondents. The application was duly heard by the lower Court on 27th March, 2014 as shown at pages 361-363 of the main record. In a considered ruling delivered on 27th May, 2014, pasted at pages 341-344 of the main record, the lower Court dismissed the application.

The appellants were dissatisfied with the decision. Hence, on 17th November, 2014, the appellants lodged a 4-ground notice of appeal which is copied at pages 63-67 of the supplementary record. Subsequently, with the leave of the Court, the appellants filed an amended notice of appeal on 25th November, 2016 and deemed properly filed on 1st December, 2016, which warehouses seven grounds, wherein they prayed for the following reliefs:
i. An order allowing the appeal.
ii. An order setting aside the ruling of the trial Court,
iii. An order mandating the 1st Respondent to pay the Appellants their full or 100% terminal benefits in compliance with the decision of the Supreme Court of Nigeria in Suit: S.C./190/2003; S. O. Ntuks & Ors v. Nigerian Port Authority, delivered on 11th day of May 2007, with immediate effect and at 13% interest being the current Central Bank Nigeria Minimum Rediscount Rate.
iv. An order mandating the 1st Respondent to pay the Appellants the sum of Twenty Million Naira (N20,000,000) as solicitor’s fee for engagement of Davidson Adejuwon & Co and Yemi Raji LP for the prosecution of this appeal.
v. An order mandating the 1st Respondent to pay the sum of ten Million Naira (N10,000,000) as cost of the appeal to the Appellants.
vi. And for such further or other orders as Honourable Court may deem fit to make in the circumstance.

Thereafter, the parties, through their learned counsel, filed and exchanged their respective briefs of argument in line with the procedure governing the hearing of civil appeals in this Court. The appeal was heard on 11th March, 2020.
First respondent’s preliminary objection.
The first respondent greeted the appeal with a notice of preliminary objection, filed on 7th July, 2017, which prayed the Court to strike out the appeal, on grounds of incompetence, on the following grounds:
1. Appellants’ appeal against the exercise of discretion by the Honourable Justice O. Oyewumi of the National Industrial Court, Lagos Division (Lower Court) is an appeal on grounds of mixed law and facts for which no Leave was sought from the lower Court or this Honourable Court.
2. Appellants’ right to appeal against the decision of the Lower Court is by virtue of Sections 243 (2) and (3) of the 1999 Constitution (as amended limited to appeals on the issue of fundamental rights as contained in Chapter IV of the 1999 Constitution (As amended).
3. Grounds 1, 2, 3, 4, 5, 6 and 7 of the Amended Notice of Appeal dated 24th November, 2016 do raise issues of discretion and do not raise constitutional issues of breach of Appellants’ fundamental rights and are consequently incompetent grounds of appeal.

In arguing the objection, learned counsel for the first respondent (the objector) Ayodeji Awobiyide Esq., enumerated the importance of jurisdiction. He submitted that lack of it and breach of its procedure would render proceedings a nullity. He relied on Theobros Auto-Link Nig. Ltd. v. Bakely International Auto-Engineering Co. Ltd. (2013) 2 NWLR (Pt. 1338) 337; F.H.A v. Emelie (2013) 5 NWLR (Pt. 1347) 281; Onyeka v. Ogbonna (2013) 11 NWLR (Pt. 1366) 462; Madayedupin v. Oninoram(2013) 1 NWLR (Pt. 1334) 175. He asserted that the appellants’ grounds of appeal were based on exercise of discretion that involved mixed facts and law for which they ought to obtain leave of Court before filing it. He described the grounds as incompetent because of failure to obtain leave of Court. He cited UBN PLC v. Sogunro (2006) 16 NWLR (Pt. 1006) 504; Nasir v. Bindawa (2006) 1 NWLR (Pt. 961) 355; He claimed that the only right of appeal was against the decision of the lower Court on fundamental rights. He referred to Section 243 (2) and (3) of the Constitution, as amended, Coca-Cola (Nig.) Ltd. v. Akinsanya (2013) 18 NWLR (Pt. 1386) 255; Ajibi v. Olaewe (2003) 8 NWLR (pt. 822) 237; Bwai v. UBA PLC (2002) 4 NWLR (Pt. 758) 692; Skye Bank v. Iwu (2017) LPELR-42595 (SC) 1. He reasoned that the lower Court properly exercised its discretion and needed no interference. He citedIbiyemi v. FBN PLC (2013) 17 NWLR (Pt. 848) 196; Oduyoye v. Lawal (2003) 3 NWLR (Pt. 807) 432; Udensi v. Odusote (2003) 6 NWLR (Pt. 817) 545. He maintained that the grounds were not based on violation of fundamental rights and so incompetent. He referred to Tukur v. Govt., of Gongola State (1989) 4 NWLR (Pt. 117) 517; Egbuonu v. B.R.T.C. (1997) 12 NWLR (Pt. 531) 29; Raymond Dongtoe v. CSC Plateau State (2001) 19 WRN 125; Peterside v. IMB (Nig.) Ltd. (1993) 2 NWLR (Pt. 278) 712.

On the date of hearing, neither the appellants nor their counsel were present despite service. The appellant’s’ reply brief, settled by Adeyemi Raji, Esq., containing arguments against the objection was deemed argued by the Court pursuant to the provision of Order 19 Rule 9 (4) of the Court of Appeal Rules, 2016.

For the appellants, learned notified the Court that the appellants filed a motion, on 4th June, 2018, seeking to regularise their position based on the cases of: Skye Bank v. Iwu (2017) LPELR-42595 (SC); Shanu v. Afribank (2000) 13 NWLR (Pt. 684) 392; Nalsa & Team Associates v. NNPC (1991) 8 NWLR (Pt. 212) 652. He then submitted that when two applications were filed before the Court, it would take the one that would breathe life into the matter. He relied on Nalsa & Team Associates v. NNPC (supra); A-G, Fed. V. AIC Ltd. (1995) 2 NWLR (Pt. 378) 388; Shanu v. Afribank (supra). He posited that the Court had jurisdiction based on the decision inSkye Bank v. Iwu (supra). He explained that the appellants did not abandon grounds 6 and 7 of the notice of appeal. He contended that the appellants’ brief of argument was based on the original notice of appeal, not on the amended notice. He, however, added that it was an honest mistake that could be corrected during the hearing of the appeal. He urged the Court to dismiss the objection.

Resolution of the preliminary objection
A preliminary objection is a specie of objection which, if sustained by a Court, will render further proceedings in a matter unnecessary, see Abe v. UniIlorin (2013) 16 NWLR (Pt. 1379) 183; APC v. INEC (2015) 8 NWLR (Pt. 1462) 531; Jim-Jaja v. C.P, Rivers State (2013) 6 NWLR (Pt. 1350) 225. For this reason, the law commands the Court to deal first with a preliminary objection when raised in any proceedings, see Uwazurike v. A.-G., Fed. (2007) 8 NWLR (Pt. 1035) 1; B.A.S.F. (Nig.) Ltd v. Faith Enterprises Ltd. (2010) 4 NWLR (Pt. 1183) 104; SPDCN Ltd v Amadi (2011)14 NWLR (Pt. 1266) 157; FBN Plc v. T.S.A. Ind. Ltd (2010) 15 NWLR (Pt. 1216) 247; Okereke v. James (2012) 16 NWLR (Pt. 1326) 339; APC v. INEC (Supra); Ogboru v. Uduaghan (2013) 1 NWLR (Pt. 1311) 357; Efet v. INEC (2011) 7 NWLR (Pt. 1247) 423; Sa’eed v. Yakowa (2013) 7 NWLR (Pt. 1352) 133; Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113; SPDCN Ltd. v. Agbara (2016) 2 NWLR (Pt. 1496) 353; Agbaje v. INEC (2016) 4 NWLR (Pt. 1501) 151; Allanah v. Kpolokwu (2016) 6 NWLR (Pt. 1057) 1; Umanah (Jnr.) v. NDIC (2016) 14 NWLR (Pt. 1533) 458; Esuwoye v. Bosere (2007) 1 NWLR (Pt. 1546) 256; Achonu v. Okuwobi (2017) 14 NWLR (Pt. 1584) 142. I will obey this legal commandment so as not to insult the law.

The objector seeks to terminate the appeal in limine on three vitriolic grounds as listed above. The import of the grounds is that this Court is not equipped with the jurisdiction to entertain the appeal.
Jurisdiction, a mantra in adjudication: connotes the authority/power of a Court to determine a dispute submitted to it by contending parties in any proceeding, see Ajomale v. Yaduat (No. 1)(1991) 5 SCNJ 172; Mobil Pro. Co. Unltd v. LASEPA (2002) 18 NWLR (Pt. 798) 1; Ndaeyo v. Ogunnaya (1977) 1 IM SLR 300; Ebhodaghe v. Okoye (2004) 18 NWLR (Pt. 905) 472; Society Bic S.A. v. Charzin md. Ltd. (2014) 4 NWLR (Pt. 1398) 497; Garba v. Mohammed (2016) 16 NWLR (Ct. 1537) 114; A. — G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; lsah v. INEC (2016) 18 NWLR (Pt. 1544) 175; Angadi v. PDP (2018) 15 NWLR (Pt. 1641)1.
A Court of law is invested with jurisdiction to hear a matter when: “1. it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and 2. the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and 3. the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction”, see Madukolu v. Nkemdilim (2006) 2 LC 208/(1961) NSCC (vol. 2) 374 at 379, per Bairamian F. J., Tukur v. Taraba State (1997) 6 SCNJ 81; Dairo v. UBN (2007) 16 NWLR (Pt. 1059) 164; Okereke v. Yar’ Adua (2008) 12 NWLR (Pt. 1100); Saraki v FRN (2016) 3 NWLR (Pt. 1500) 531; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80: Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Okpe v. Fan Milk Plc. (2017) 2 NWLR (Pt. 1549) 282; Bello v. Damisa (2017) 2 NWLR (Pt. 1550) 455; Osi v. Accord Party (2017) 3 NWLR (Pt. 1553) 387. These three ingredients must coexist in order to vest jurisdiction in a Court.

The objector staked/erected its objection on the provision of Section 243 (2) and (3) of the Constitution, as amended. Due to the kingly position of the provision herein, it is germane to pluck it out, where it is domiciled in the Constitution, ipsissima verba, thus:
(2) An appeal shall lie from the decision of the National Industrial Court as of right to the Court of Appeal on questions of fundamental rights as contained in Chapter IV of this Constitution as it relates to matters upon which the National Industrial Court has Jurisdiction.
An appeal shall only lie from the decision of the National Industrial Court to the Court of Appeal as may be prescribed by an Act of the National Assembly;
Provided that where an Act of Law prescribes that an appeal shall lie from the decision of the National Industrial Court to the Court of Appeal, such appeal shall be with the leave of the Court of Appeal.
The provision, which is comprehension-friendly, has fallen for interpretation before the apex Court. In Skye Bank Plc v. Iwu (2017) 16 NWLR (Pt. 1590) 24 at 105-106, the oracular Nweze, JSC, incisively, declared:
In all, then, on a holistic interpretation of Sections 240 and 243 (1) of the 1999 Constitution, appeals lie from the trial Court to the lower Court, that is, all decisions of the trial Court are appealable to the lower Court: as of right in criminal matters; (Section 254 c (5) 1(6)) and fundamental right cases, (Section 243 (2)); and with the leave of the lower Court, in all other civil matters where the trial Court has exercised its jurisdiction, Sections 240 read conjunctively with Section 243 (1) and (4).
See also, Cocoa (Nig.) Ltd. v. Akinsanya (2017) 17 NWLR (Pt. 1593) 74.
The seven grounds in the notice of appeal, which the objector seeks to impugn and expel, are warehoused in the appellants’ amended notice of appeal filed on 25th November, 2016. Being the cynosure of the onslaught, I will extract those grounds, derobed of their particulars, verbatim ac litteratim, as follows:
One
The trial Court erred in law when it failed to hear and determine the Appellants’ applications for change of counsel before entering the terms of settlement as its judgment in the case.
Two
The trial Court erred in law when it held that the Appellants show disinterest in the amicable settlement.
Three
The trial Court erred in law having entered judgment for the consented parties failed to proceed enter judgment for the Appellants as per their own uncompromised claims.
Four
The trial Court erred in law when despite its being aware that “Common interest” and “common grievance” were no longer present among the Appellants and the 2nd to 11th Respondents still went ahead to deny the Appellants the right to be heard through another counsel.
Five
The trial Court erred in law when it held that the Appellants and the 2nd to 11th Respondents are inseparable, acted together, consented together and filed terms of settlement together for which a consented judgment entered for them.
Six
The trial Court erred in law when after hearing and determining the applications of the Applicants for change of counsel held that it is functus officio as regards the case.
Seven
The decisions of the trial Court are against weight of evidence.
In total fidelity to the desire of the law, I have married these catalogued grounds, which are in the heat of expunction/decimation, with the inelastic position of the law displayed above. The raison d’etre for the juxtaposition is simple. It is to ascertain whether those grounds are obedient to the law or rebellious to it. I have, in due obeisance to the law, given them a clinical examination with finery of a tooth comb. To my mind, the meat of the appellants’ grievance in grounds one and four, which are on all fours on their import, is that the lower Court’s failure or neglect to treat their application for change of counsel, curtailed their inalienable right to fair hearing as entrenched in Section 36 (1) of the Constitution, as amended. The right to fair hearing is one of the fundamental rights wrapped in Chapter IV of the Constitution, as amended. Ground three quarrels with the lower Court’s failure to enter judgment for them in their uncompromised claims. Ground five chastises the lower Court’s finding that the appellants participated in the process which transfigured into the consent judgment. Ground six queries the lower Court’s declaration of functus officio, in the case, after the determination of their application. Ground seven seeks to puncture the lower Court’s evaluation of evidence in the application.
It stems from these expatiations, that it is only grounds one and four that orbit around the four walls/perimeter of fundamental right. They are the only grounds that the appellants could appeal to this Court as of right as decipherable from the statutory and case-law authorities dissected earlier. In mind of the law, for grounds two, three, five-seven, the appellants were required to seek and obtain the leave of this Court before filing them. Curiously, the appellants, in their infinite wisdom, starved this Court of any grain of evidence of fulfillment of this inelastic requirement of the law.
In the sight of the law, leave, in this context, signifies permission, seeS.U. Ojemen v. Momodu (1983) 1 SCNLR 188; Nwadike v. Ibekwe (1987)4 NWLR (Pt. 67) 7181(1987) 2 NSCC, Vol. 18, 1219; Garuba v. Omokhodion (2011) 14 NWLR (Pt.. 1269) 145; Otu v. ACB Int’l Ltd. (2008) 3 NWLR (Pt. 1073) 179. Where leave of Court, trial or appellate, is required for filing an action/process and a party ignores seeking and obtaining the requisite leave before filing same, the action/process is rendered incompetent, see UBA Plc. v. Sogunro (2006) 16 NWLR (Pt. 1006) 504; Garuba v. Omokhodion (supra); Thor Ltd. v. FCMB Ltd. (2002) 4 NWLR (Pt. 757) 427; Ugboaja v. Akitoye-Sowemimo (2008) 16 NWLR (Pt. 1113) 278; Akinyemi v. Odu’a mv. Co. Ltd. (2012) 17 NWLR (Pt. 1329) 209; Okwuagbala v. lkwueme (2010) 19 NWLR (Pt. 1226) 54; Nwaolisah v. Nwabufoh (2011) 14 NWLR (Pt. 1268) 600; Njemanze v. Njemanze (2013) 8 NWLR (Pt. 1356) 376; lmegwu v. Okolocha (2013) 9 NWLR (Pt. 1359) 347; Ugwu v. State (2013) 14 NWLR (Pt. 1374) 257; Ngere V. Okuruket ‘xiv’ (2014) 11 NWLR (Pt. 1417) 147; Ekunola v. CBN (2013) 15 NWLR (Pt. 1377) 224; Allanah v. Kpolokwu (2016) 6 NWLR (Pt. 1507) 1; Anachebe v. Ijeoma (2014) 14 NWLR (Pt. 1426) 168; B.B. Apugo & Sons Ltd. v. O.H.M.B. (2016) 13 NWLR (Pt. 1529) 6; Obasi v Mikson Est. Ind. Ltd. (2016) NWLR (Pt.1539) 335; Otti v Ogah (2017) 7 NWLR (Pt. 1563) 1; Sogunro v Yeku (2017) 9 NWLR (Pt. 1570) 290; Mato v. Hember (2018) 5 NWLR (Pt. 1612) 258.
It flows that the appellants’ neglect to obtain the leave, a costly failure, is that those grounds two, three, five-seven are tainted with an indelible incompetence. The legal consequence of this incompetence is far-reaching. It impinges on the jurisdiction of this Court to entertain those grounds as they await for expulsion.
The appellants crafted three issues for determination of the appeal. They monopolise page 4 of the amended appellants’ brief of argument. While issue one traces its paternity to the competent grounds one and four, the incompetent grounds two, three, five-seven mothered issues (ii) and (iii). The incompetence is contagious. It infects/stains the issues (ii) and (iii) and render them orphans and incompetent too. The reason is not far-fetched. An incompetent ground of appeal cannot give birth to a competent issue, see Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421; Umana (Jnr.) v. NDIC (2016) 14 NWLR (Pt. 1533) 456; Labour Party v. Bello (2017) 2 NWLR (Pt. 1548) 145;Sogunro v. Yeku (2017) 9 NWLR (Pt. 1570) 290; Mobil Producing (Nig.) Unltd. v. Johnson (2018) 14 NWLR (Pt. 1639) 329; A.T.S. & Sons v. B.E.C. (Nig.) Ltd. (2018) 17 NWLR (Pt. 1647) 1. The soiled issues (ii) and (iii) will share in the fate of the incompetent grounds two, three, five-seven: the liability /burden of being struck out.
In the light of this brief legal anatomy, the preliminary objection, invented by the first respondent/objector to snuff life out of the appeal, at its embryo, is partially meritorious. I uphold it in part. Consequently, I declare grounds one and issue as competent and valid. Grounds two, three, five – seven and issues (ii) and (iii) are struck out for being incompetent. I will proceed to handle the appeal on the viable grounds one and four and issue (i) attendant thereto.

Consideration of the appeal.
During the hearing of the appeal, on 11th March, 2020, learned counsel for the first respondent, Ayodeji Awobiyide, Esq., adopted the first respondent’s brief of argument, filed on 7th July, 2017, as representing his arguments for the appeal. He urged the Court to dismiss. The appellants’ brief of argument was filed on 16th December, 2017 and deemed properly filed on 8th June, 2017. The appellants’ reply brief was filed on 4th June, 2018. Both were franked by Adeyemi Raji, Esq. The appellants were duly served with hearing notice. Consequently, the Court treated the appeal as, duly heard pursuant to the provision of Order 19 Rule 9 (4) of the Court of Appeal Rules, 2016. The second-eleventh respondents filed no brief of argument despite service of the processes on them.

In the appellants’ brief of argument, learned counsel distilled three issues for determination. It will be recalled that the issues (ii) and (iii) were struck out based on the preliminary objection. The only issue (i), which survived the objection, reads:
One
Whether the trial Court was not wrong when it failed to hear and dispose of the pending Appellants’ applications for change of counsel before determining the case by entering the terms of settlement as its judgment and whether the trial Court was not wrong when it denied the Appellants their constitutional right to be heard through a legal practitioner despite being aware that “common interest” and “common grievance” were no longer present among the Plaintiff?

In the first respondent’s brief of argument, learned counsel adopted the issue with variation in semantics to wit: “Whether or not the dismissal of appellants’ Motion on Notice dated 13th January, 2014 was in breach of appellants’ right to fair hearing”.

Arguments on the issue
Learned counsel for the appellants narrated the events that occurred in the lower Court before the hearing of the application. He submitted that a Court had the duty to hear all application before it. He relied on N.A.A v. Orjiakor (1998) 6 NWLR (Pt. 553) 265. He posited that failure of counsel to notify the Court of a pending motion would not affect its duty to hear all applications before it. He cited Agbu v. Agbu (2007) 1 NWLR (Pt. 1016) 528. He asserted that the lower Court was bound to hear the application before the consent judgment as choice of counsel was tied to fair hearing. He referred to A-G, Fed. v. ICAN (2002) 10 NWLR (Pt. 776) 492.

Learned counsel postulated that the lower Court’s failure to grant the application was a breach of the appellants’ right to fair hearing. He cited Agbu v. Agbu (supra); Ekennia v. Nkpakara (1997) 5 NWLR (Pt. 504) 152; Okonji v. Njokanma (1989) 4 NWLR (Pt. 114) 161. He maintained that the application for change of counsel was appropriate and ought to have been granted by the lower Court.

On behalf of the first respondent, learned counsel argued that the appellants’ counsel was given audience and he argued the application. He reasoned that dismissal of the application did not translate to breach of fair hearing of the appellants. He cited Odigwe v. J.S.C., Delta State (2011) 10 NWLR (Pt. 1255) 255; Ukachukwu v. PDP (2014) 17 NWLR (Pt. 1435) 134. He asserted that the second-eleventh respondents had the right to discontinue/compromise the representative action. He referred to Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587. He claimed that the lower Court heard the application judicially and judiciously.

Resolution of the issue
A clinical examination of the issue, amply, discloses, the hub of it. It castigates the lower Court’s dismissal of the appellants’ application for change of counsel as denial of their right to fair hearing. The issue, though seemingly knotty, is canalised within a slim scope.
The appellants accused the lower Courts’ decision, as an erosion of their inviolable right to fair hearing as guaranteed/enshrined in Section 36 (1) of the Constitution, as amended. Fair hearing connotes 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 cause, 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. Due to its olympian status in the appeal, it is germane to display some of the notable features of fair hearing – a mantra which, nowadays, competes with jurisdiction for prominence in adjudications.
The ancient concept of fair hearing traces its paternity to divinity. It was a common law doctrine which has metamorphosed into the corpus of our jurisprudence and, firmly, entrenched in Section 36(1) of the Constitution, as amended. It donates to the citizens the inviolable right to ventilate their grievances on the altar of the two concrete pillars of natural justice to wit: 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 or administrative, 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 feuding 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; Abah v. 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. Dangiri (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.
The apex Court, in Baba v. Civil Aviation (1991) 7 SCNJ (Pt. 1) 1 at 24/(1991) 5 NWLR (Pt. 192) 388 at 423, per Nnaemeka-Agu, JSC, evolved the parameters to guide the Court to ensure fair hearing to include the right of the person to be affected:
(i) to be present all through the proceedings and hear all the evidence against him;
(ii) to cross-examine or otherwise confront or contradict all the witnesses that testify against him;
(iii) to have read before him all the documents tendered in evidence at the hearing;
(iv) to have disclosed to him the nature of all relevant material evidence, including documentary and real evidence, prejudicial to the party, save in recognised exceptions;
(v) to know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence; and
(vi) to give evidence by himself, call witnesses if he likes, and make oral submissions either personally or through a counsel of his choice.
See also JSC, Cross River State v. Young (2013) 11 NWLR (Pt. 1364) 1; Eze v. FRN (supra); Olayioye v. Oyelarin 1 (2019) 4 NWLR (Pt. 1662) 351; La Wari Furniture & Baths Ltd. v. FRN (supra); S & D Const. Co. Ltd. v. Ayoku (supra).
Where a party’s sacred right to fair hearing is flouted, no matter the quantum of fair-mindedness, dexterity, artistry and objectivity injected into the proceeding hosting the breach, it will be mired in the ocean 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. This is a confluence point where want of fair hearing and jurisdiction embrace themselves to vitiate proceedings that give birth to 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; Abah v. Monday (2015) 14 NWLR (Pt. 1480) 569.
Now, the meat of the appellants’ chief grievance, indeed their trump card on the nagging issue, is that the lower Court’s failure to grant their prayer for change of counsel, in their application, occasioned a violation of their right to fair hearing. I have, in due loyalty to the dictate of the law, consulted the records, the touchstone/bible of the appeal. The proceedings of the lower Court, whence the decision germinated, reside and colonise pages 361-365 of the main record. I have burrowed through them with merciless scrutiny. Admirably, they are submissive to unambiguity. The proceedings amply showcase the active participation of learned counsel for the appellants, D.O. Adejuwon, Esq., in the happenings in the lower Court on 27th March, 2014. In point of fact, the proceedings reveal that the learned appellants’ counsel was allowed to argue the application. Indeed, he enjoyed the double procedural advocacy: oral and written. In other words, the appellants, through counsel, proffered both oral and written submissions vis a vis their application with the corresponding response by their adversary’s counsel. It flows from the foregoing, that the appellants were heard on the application. They were accorded equal treatment, opportunity and consideration with their opponent, the first respondent, in the hearing of the application. It must be place record, apace, that the duty of the Court is to provide the enabling and hospitable environment and grant feuding parties equal chance to present their cases. It is, to my mind, decipherable from the unequivocal proceedings of 27th March, 2014 that the lower Court, in an unbiased manner, created a congenial atmosphere for the appellants to ventilate their grievances, change of counsel, as engrained in their application.

The appellants erected the gravamen of their grouse on the lower Court’s refusal of their application. The point must be underscored that their grudge is on a totally different wicket. I think, with due reverence, learned appellants’ counsel mixed up the issues. Hearing a matter/application and the outcome of it are two divergent streams in the variegated tributaries of adjectival law. They are mutually exclusive. While the want of the former, in deserving circumstances, can denude a party’s right to fair hearing, the latter may be impotent to impregnate it. The consequence is plain. The lower Court’s refusal to grant the appellants’ application cannot, under any guise or any stretch of elastic imagination, tantamount to an infringement of their non-forfeitable right to fair hearing as encapsulated in Section 36 (1) of the Constitution, as amended. This is because, they were heard before the decision of the lower Court seeDec Oil & Gas Ltd. v. Shell (Nig.) Gas Ltd. (2019) 14 NWLR (Pt. 1692) 273. In effect, the appellants’ inviolate right to fair hearing was not, in the least, fractured by the lower Court. It is therefore not available for them to harvest/harness from the sanctuary/vineyard of the beneficent provision of Section 36(1) of the Constitution, as amended. Thus, in Adebayo v. A. – G., Ogun State (2008) 7 NWLR (Pt. 1085) 201 at 221 and 222, the apex Court, per Tobi, JSC, admonished:
…The fair hearing provision in the Constitution is the machinery or locomotive of justice; not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case.
This magisterial pronouncement, in the ex cathedra authority, with due respect, punctures and exposes the learned appellants’ counsel’s salivating argument on the point. It is disabled from birth. It cannot fly.
In the light of this brief juridical survey, the lower Court’s decision, as it relates to the appellants’ application, is not guilty of the appellants’ pseudo-charge of breach of their right to fair hearing levelled against it. It may be faulted on the footing of other considerations. However, I am not oblivious of the fact that those other issues, which may have influenced it, were mowed down by the unbiased judicial sword of this Court and, de jure, ostracised from the appeal. On this score, all the strictures, which the appellants weaved and rained against the hearing of the application, are lame and peter into insignificance. In the end, I am left with no option than to resolve the issue against the appellants and in favour of the respondent.

On the whole, having resolved the solitary issue against the appellants, the fortune of the appeal is obvious. It is devoid of any ray of merit and deserves the penalty of dismissal. Consequently, I dismiss the appeal. The parties shall bear the respective costs they incurred in the prosecution and defence of the ill-fated appeal.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: My learned brother, Obande Festus Ogbuinya, JCA, graciously obliged me with a preview of the leading judgment which has just been delivered, and in which he found the appeal on the sole surviving issue left after the 1st Respondent’s preliminary objection against some of the grounds of appeal succeeded, as lacking in merit and dismissed it.

I am in total agreement with the rather indepth analysis of the issues raised in both the 1st Respondent’s Preliminary Objection and the sole surviving issue in the main appeal and their comprehensive resolution.

I really do not have anything of greater value to add as the decisions reached on both the 1st Respondent’s Preliminary Objection and the appeal proper accord with my views. I abide with the magnanimous consequential orders made that both parties shall bear their respective costs.
The appeal is dismissed by me too.

BALKISU BELLO ALIYU, J.C.A.: I had the privilege of reading in draft the leading judgment just delivered by my learned brother Obande Festus Ogbuinya, JCA.

I agree with the reasoning and conclusion reached in resolving the lone surviving issue for determination against the Appellant. I also find no merit in this appeal and I dismiss it. I abide by the order of cost made in the leading judgment. Appeal dismissed.

Appearances:

No legal representation for the Appellants For Appellant(s)

Ayodeji Awobiyide, Esq. for the 1st Respondent

No legal representation for the 2nd-11th Respondents For Respondent(s)