HAND OF GOD ESTATE LTD & ANOR v. DANKARO & ANOR (2022)

HAND OF GOD ESTATE LTD & ANOR v. DANKARO & ANOR

(2022)LCN/16779(CA)

In the Court of Appeal

(LAGOS JUDICIAL DIVISION)

On Tuesday, March 22, 2022

CA/LAG/CV/1204/2019

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Muhammad Ibrahim Sirajo Justice of the Court of Appeal

Peter Oyinkenimiemi Affen Justice of the Court of Appeal

Between

1. HAND OF GOD ESTATE LIMITED 2. KEN KOL NIGERIA LIMITED APPELANT(S)

And

1. MR. BASHAR DANKARO 2. DR. SABO JOSEPH DANKARO (FOR THEMSELVES AND ON BEHALF OF THE ESTATE OF LATE CHIEF (DR.) SUNDAY DANKARO) RESPONDENT(S)

RATIO

THE POSITION OF LAW ON 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 and 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(2017) 1 NWLR (Pt. 1546) 256 and 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.

WHETHER OR NOT A DEAD PERSON CAN SUE AND BE SUED

The settled position of the law, in the days of the yore, is that a dead person loses his legal personality and as such cannot sue or be sued in any action. By the same token, such a deceased person cannot initiate or defend an appeal. In the Latin days of the law, the hallowed principle of law was encapsulated in the maxim: Actio personalis moritor cum persona: a personal action dies with the person. See Management Enterprises Ltd. v. Otusanya (1987) 1 NSCC (vol. 18) 577/(1987) 2 NWLR (Pt. 55) 179/(1987) 4 SC 368; Oyeyemi v. Commissioner for L.G. Kwara State (1992) 2 NWLR (Pt. 226) 661; In Re: Adeosun (2001) 8 NWLR (Pt. 714) 200; Ezenwosu v. Ngonadi (1988) 3 NWLR (Pt. 81) 163; In Re: Otuedon (1995) 4 NWLR (Pt. 392) 655; C.C.B. (Nig.) Ltd. v. Onwuchekwa (2000) 3 NWLR (Pt. 647) 65; Mulima v. Usman (2014) 16 NWLR (Pt. 1432) 160; APC v. INEC (2015) 8 NWLR (Pt. 1462) 531. Bajehson v.Otiko (2018) 14 NWLR (Pt. 1638) 138; Adeniran v. Olusokun II (2019) 8 NWLR (Pt. 1673) 98. PER OGBUINYA, J.C.A.

THE POSITION OF LAW WHERE A PARTY’S RIGHT TO FAIR HEARING IS INFRINGED UPON

Where a party’s sacred 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 intractable web of nullity. See Nyesom 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; Abah v. Monday (2015) 14 NWLR (Pt. 1480) 569. PER OGBUINYA, J.C.A.

THE POSITION OF LAW ON WHERE A MOTION OF NOTICE IS FILED

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal is an offshoot of the decision of the High Court of Lagos State, Lagos Division (hereinafter addressed as “the lower Court”), coram judice: Ibironke Harrison, J, in Suit No. LD/72/2010, delivered on 8th July, 2013. Before the lower Court, the appellants and the respondents were the claimants and the defendants respectively.

The facts of the case, which transformed into the appeal, are submissive to brevity and simplicity. The respondents’ deceased father, Dr. Sunday Dankaro, acquired a parcel of land, lying and known as Block 76, Plot 39, Lekki Phase 1, Lekki, Lagos, from the Lagos State Government through a certificate of occupancy issued to him and registered as 68/68/1990 at the Lagos Lands Registry, Alausa, Lagos. The deceased, during his lifetime, had a quiet and peaceful possession and enjoyment of the property without any hindrance from anybody. In 2005, the deceased misplaced the certificate of occupancy and he applied for a memorandum of loss which was registered as 100/100/2098 at the Lagos Lands Registry. In February, 2009, the respondents found the property being fenced by unknown persons. On inquiry, they discovered that one Mr. Oluwole Fowora, who was later to become the first defendant in the lower Court, was claiming ownership of it. It was further discovered that Mr. Oluwole Fowora (the first defendant) had sold it to the first appellant which, in turn, alienated it to the second appellant. Sequel to that, the respondents beseeched the lower Court, via an amended writ of summons filed on 12th August, 2010, and tabled against the first defendant and the appellants, the following reliefs:
(a) A DECLARATION that the Claimants’ Land situate and known as Block 76 Block 39, Lekki Phase 1, was never sold or assigned to the 1st Defendant or any of the Defendant or any other person in this suit.
(b) Damages in the sum of N10,000,000.00 (Ten Million Naira) against the Defendants for the trespass upon the Claimants land known as Block 76 Plot 39, Lekki Scheme 1, Lagos.
(c) AN ORDER of perpetual injunction against the Defendants or any unknown person from doing anything or act which will in any way disturb the Claimants’ quiet possession and peaceful enjoyment of the property known as Block 76, Plot 39, Lekki Phase 1, Lagos, registered as No. 68 at Page 68 in Volume 1990p at the Lagos Land Registry, Alausa, Lagos.
(d) Cost of this action.

In reaction, the first defendant and the appellants joined issue with the respondents and denied liability by filing a joint defence. In their defence, they alleged that the deceased, Dr. Sunday Dankaro, sold the property to the first defendant via a deed of assignment which was registered as 60/60/2205 at the Lagos Lands Registry. Subsequently, the first defendant transferred his registered interest in the property to the first appellant which later sold the property to the second appellant. They asserted that the property should not have been included in the estate of the respondents’ deceased father – Dr. Sunday Dankaro. Consequently, they counter-claimed against the respondents for the following reliefs:
(1) A declaration that the Memorandum of Loss registered as No. 100/100/2098; he Deed of Assignment registered 95/95/2219 at the Lands Registry, Alausa, Ikeja, Lagos and the sale to the 3rd defendant in respect of the said land plot 39, Block 76 Lekki Phase 1, Lagos remain valid and subsisting.
(2) An Order that the original Certificate of Occupancy of the land and any other document, if any, in respect of the property in dispute now in possession of the claimants be delivered up to the Court for cancellation OR in the alternative, be delivered to the 3rd defendant, the current owners of the land.
(3) N500,000.00 general and specific damages for trespass shocks and emotional discomfort caused to the defendants.
(4) Perpetual injunction restraining the claimants, their agents, privies and assigns from further trespass on the land.

Following the discordant claims, the lower Court had a full-blown determination of the case. In proof of the case, the respondents called a sole witness: CW1. In disproof of the case, the first defendant and the appellants fielded four witnesses: DW1 – DW4. Tons of documentary evidence were tendered by the parties. At the closure of evidence, the parties, through their respective counsel, addressed the lower Court in the manner required by law. In a considered judgment, delivered on 8th July, 2013, found at pages 145 – 152 of the main record, the lower Court non-suited the respondents and granted partially prayer (1) of the counter-claim and dismissed the other reliefs therein.

The appellants were dissatisfied with the decision. Hence, on 27th May, 2019, the appellant, after this Court had granted them an extension of time to appeal on 7th May, 2019, lodged a 4-ground notice of appeal, reflected at pages 153 – 158 of the main record, wherein they prayed this Court as follows:
i. AN ORDER allowing the appeal and setting aside the judgment of the lower Court delivered on the 8th day of July, 2013.
ii. An order entering judgment in favour of the Appellants and granting the reliefs sought by the Appellants in their counter-claim at the lower Court.
iii. Any further order(s) as the Honourable Court may deem necessary to make in the circumstances of this case.

Thereafter, the parties, through their counsel, filed and exchanged their respective briefs of argument in line with the procedure for hearing civil appeals in this Court. The appeal was heard on 19th January, 2022.

During its hearing, learned counsel for the appellants, K. O. P. Odidika, Esq., adopted the appellants’ brief of argument, filed on 11th September, 2020 but deemed properly filed on 27th September, 2021, and the appellants’ reply brief, filed on 7th December, 2021, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned respondents’ counsel, E. E. Asia, Esq., adopted the respondents’ brief of argument, filed on 25th October, 2021, as forming his reactions against the appeal. He urged the Court to dismiss it.

Respondents’ Preliminary Objection.
At the threshold of the respondents’ brief of argument, the respondent registered a preliminary objection to the competence of the appellants’ appeal on the following grounds:
A. The appeal is not properly constituted in that the 1st Defendant in the judgment of the lower Court has not been made a party to the appeal. The issues arising from the appeal cannot be effectively and effectually determined without the 1st Defendant before the lower Court.
B. Assuming but not conceding the appeal is properly constituted, no issue has been raised from Ground 1 of the Notice of Appeal. The effect is that the ground of appeal is deemed abandoned and should be struck out.

Submissions on the preliminary objection.
Learned respondents’ (objectors’) counsel submitted that the appeal was incompetent because of the absence of the first defendant who was a necessary party. He relied on Obasohan v. Ogida (2018) LPELR – 46123 (CA), Okwu v. Umeh (2015) LPELR – 26042 (SC), Green v. Green (1987) 3 NWLR (Pt. 61) 480/(1987) 2 NSCC (vol. 18) 1115. He asserted that the appellants did not explain the reason for absence of the first defendant. He described the reference to him as dead as vague. He reasoned, in the alternative, that even if he was dead, his estate, by the nature of the subject matter, will be competent to take his place. He cited Hitech Construction Co. Ltd. v. Ude (2016) LPELR – 49965 (CA), Ogunsanya v. Abdullahi (2016) LPELR – 40426 (CA) and Diamond Hotel Ltd. v. Obikoya (2018) LPELR – 45533 (CA). He urged the Court to dismiss the appeal.

Learned counsel further submitted that the ground 1 in the Notice of Appeal was abandoned because no issue was formulated from it. He opined that issue one had no bearing with ground 1. He urged the Court to strike it out. He referred to Purification Technique (Nig.) Ltd. v. Jubril (2012) 18 NWLR (Pt. 1331) 109.

On behalf of the appellants, learned counsel contended that the first defendant was dead and could not sue or be sued. He observed that for a Court to have jurisdiction proper parties must be before it. He insisted that the appeal would have been incompetent if the dead first defendant had been included as a party. He relied on In Re: Otuedon (1995) 4 NWLR (Pt. 392) 65, John Andy Sons & Co. Ltd. v. Etim (2019) LPELR – 47980 (CA) and Ndasuko v. Mohammed (2007) LPELR – 8738 (CA).

Learned counsel further contended that appeal is argued on issues and not grounds of appeal. He cited Ojibah v. Ojibah (1991) LPELR – 2374 (CA), Sheidu v. State (2014) 15 NWLR (Pt. 1429) 1 and Animashaun v. Onyekwuluje (2004) 2 NWLR (Pt. 856) 183. He narrated the nature of ground of appeal. He persisted that the respondent confused grounds of appeal with issue for determination. He claimed that the respondents responded to the issue and were approbating and reprobating.

Resolution of the Preliminary Objection
There is no gainsaying the fact that the respondents (the objectors) greeted the appellants’ appeal with a stiff opposition on the reasons buried in their preliminary objection. The objectors seek to terminate the appeal in limine on two vitriolic grounds catalogued earlier on.

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 and 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(2017) 1 NWLR (Pt. 1546) 256 and Achonu v. Okuwobi(2017) 14 NWLR (Pt. 1584) 142. I will obey this legal commandment so as not to insult the law.

Now, the gravamen of the respondents’ (objectors’) agitation in ground one, indeed their trump card on the preliminary objection, is that the appellants’ failure to include the first defendant, Oluwole Fowora, a necessary party, in the appeal rendered it incompetent which impinges on the jurisdiction of this Court to entertain it. The appellants, in their response, erected the defence that the first defendant was dead and drained of juristic personality. Hence his non-inclusion in the appeal.

The settled position of the law, in the days of the yore, is that a dead person loses his legal personality and as such cannot sue or be sued in any action. By the same token, such a deceased person cannot initiate or defend an appeal. In the Latin days of the law, the hallowed principle of law was encapsulated in the maxim: Actio personalis moritor cum persona: a personal action dies with the person. See Management Enterprises Ltd. v. Otusanya (1987) 1 NSCC (vol. 18) 577/(1987) 2 NWLR (Pt. 55) 179/(1987) 4 SC 368; Oyeyemi v. Commissioner for L.G. Kwara State (1992) 2 NWLR (Pt. 226) 661; In Re: Adeosun (2001) 8 NWLR (Pt. 714) 200; Ezenwosu v. Ngonadi (1988) 3 NWLR (Pt. 81) 163; In Re: Otuedon (1995) 4 NWLR (Pt. 392) 655; C.C.B. (Nig.) Ltd. v. Onwuchekwa (2000) 3 NWLR (Pt. 647) 65; Mulima v. Usman (2014) 16 NWLR (Pt. 1432) 160; APC v. INEC (2015) 8 NWLR (Pt. 1462) 531. Bajehson v.Otiko (2018) 14 NWLR (Pt. 1638) 138; Adeniran v. Olusokun II (2019) 8 NWLR (Pt. 1673) 98.

At the cradle of the appellants’ brief of argument, the appellants intimated this Court that the first defendant, Mr. Oluwole Fowora, was deceased. Curiously, the respondents starved this Court of any contrary concrete evidence, id est, that he has not died. To this end, I have every legal justification, within the evidentiary firmament, to believe that the first defendant expired in the course of the proceedings posterior to the lower Court’s judgment. Having passed on, the first defendant, in the eyes of the law, became disrobed of any juristic personality; a fortiori to initiate the appeal as a co-appellant to it. In other words, on the demise of the first defendant, he acquired an uneviable status of a non-legal persona and became destitute of all the rights that will enable him prosecute the appeal. Even if the first defendant was factored into the appeal as an appellant, his name must be struck out in order to infuse jurisdiction into this Court to entertain it. In due fidelity to this hallowed principle of law, on the legal personality of a dead party, I am not armed with any legal justification to crown the first defendant with the undeserved toga of juristic personality. The indefeasible defence of death of the first defendant, weaved by the appellants, castrates the potency of this ground one of preliminary objection. It is disabled from its birth. It cannot fly!

That takes me to the treatment of ground two of the preliminary objection. It accuses the ground 1 of the notice of appeal of abandonment on the footing of want of nexus or correlation with the appellants’ issue one.

It is now elementary law, beyond any peradventure of doubt, that a motion on notice is filed where a party intends to challenge the incompetence of one or two grounds in the presence of an existing valid ground(s) in an appeal. Where a party, in such a circumstance, files a preliminary objection, such an objection is rendered incompetent. See Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 114, Kente v. Ishaku (2017) 15 NWLR (Pt. 1587) 96, Sheriff v. PDP (2017) 15 NWLR (Pt. 1588) 219, NNPC v. Famfa Oil Ltd. (2012) LPELR – 7812 (SC)/(2012) 17 NWLR (Pt. 1328) 148, Cocacola (Nig.) Ltd. v. Akinsanya (2017) 17 NWLR (Pt. 17 NWLR (Pt. 1593) 74, Ezenwaji v. UNN (2017) 18 NWLR (Pt. 1598) 45, Petgas Resources Ltd. v. Mbanefo (2018) 1 NWLR (Pt. 1601) 442, KLM Royal Dueth Airlines v. Aloma (2018) 1 NWLR (Pt. 1601) 473, Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175, FRN v. Atuche (2019) 8 NWLR (Pt. 1674) 338, Lalapu v. COP (2019) 16 NWLR (1699) 476 and Opeyemi v. State (2019) 17 NWLR (Pt. 1702) 403.
I have married the meat of ground two of the objection with the inelastic position of the law displayed above. The wisdom behind the juxtaposition is not far-fetched. It is to ascertain if the ground of objection is obedient to the law or flouts it. An indept study of the ground two of the objection, discernible from the arguments thereon, clearly, reveals that it mainly chastises the appellants’ ground 1 in the notice of appeal. It is obvious that the objectors’ objection spared grounds 2 – 4 of the notice of appeal. In other words, those grounds 2 – 4 are viable and valid with the potency to sustain the appeal. In the face of the existential validity of grounds 2 – 4, the objectors ought not to have raised the ground two in a preliminary objection. The proper/appropriate process is an application (motion on notice) challenging the viability of the ground 1. In so far as the mission of the ground two of the objection is against grounds 1, it is impotent to determine the destiny of the entire appeal. In this wise, the objectors’ approach is, highly, offensive to the law as they ought to have besieged the Court by way of an application. The improper mode constitutes a serious coup de grace to the competency of the ground two. In due obeisance to the dictate of the law, I strike out the objectors’ ground two for being incompetent.

In the light of this brief legal anatomy, done in due consultation with the law, the preliminary objection, invented by the respondents’ (objectors’) to snuf life out of the appeal in its embryo, flies in the face of the law. Consequently, I overrule and dismiss the preliminary objection. I proceed to handle the appeal on its merits.

Consideration of the appeal
In the appellants’ brief of argument, learned counsel distilled two issues for determination, to wit:
A. Whether upon the findings of the lower Court that the Claimants/Respondents had failed to satisfy the burden of proof in the suit, the lower Court ought to have dismissed the Claimants’/Respondents’ claims as against making an order to non-suit against the claim.
B. Whether the Appellants had established cogent proof before the lower Court to entitle them to the grant of all the reliefs in their counter-claim.

In the respondents’ brief of argument, learned counsel crafted two issues for determination, namely:
1. Whether from the facts and circumstances of the case, the lower Court was right in entering an order of non-suit against the respondents.
2. Whether from the unchallenged findings of the lower Court, the Appellants are entitled to the grant of their counter-claim.

A close look at the two sets of issues shows, save for semantics, that they are identical in substance. In fact, the respondents’ issues can be, conveniently, subsumed under the appellants’. Given this sameness, I will decide the appeal on the issues nominated by the appellants: the undoubted owners of the appeal. Again, the appellants’ issue one is sufficient to dispose of the appeal.

Arguments on the issue one
Learned appellants’ counsel submitted that following the lower Court’s finding that the respondents’ case was lacking in cogent evidence, it ought not to have made an order of non-suit but dismissal against the suit. He relied on Yesufu v. ACB (1980) 1-2 SC 54 at 61, Ilodibia v. Nigerian Cement Co. Ltd. (1997) LPELR – 1494 (SC), Kachalla v. Banki (2006) 8 NWLR (Pt. 982) 364, Odiete v. Okotie (1972) 6 SC 83 and Ogbechi v. Onochie (1988) 1 NWLR (Pt. 70) 370. He reasoned that the order of non-suit was unfair as it was to the advantage of the respondents but to the prejudice of the appellants whose counter-claim was almost wholly dismissed. He persisted that the law required the lower Court to be fair and just to both parties in making the order of non-suit. He cited ACB Ltd. v. Yesufu (supra); Ogbechi v. Onochie (supra), Anyaegbunam v. Ifeduba (2013) LPELR – 21268 (CA).

Learned counsel further submitted that the lower Court did not meet all the principles guiding the grant of order of non-suit because the parties or their counsel were not asked to address the Court before making it. He insisted that the order is liable to be set aside. He referred to Aigbe v. Edokpolor (1977) 2 SC 1, Omoregbe v. Lawani (1980) 3/4 SC 180, Anyakwo v. ACB Ltd. (1976) 2 SC 41; Order 38 Rule 1 or Order 34 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules, 2019 and 2012 respectively (the High Court Rules), Ikoro v. Safrap Ltd (1977) 2 SC 12, Anyaduba v. Nigerian Renowned Trading Co. Ltd. (1992) 2 NSCC (vol. 23) 156; Ndukauba v. Kolomo (2005) 4 NWLR (Pt. 915) 411, Okoebor v. Police Council (2003) 6 SC 13, Obodo v. Olomu (1987) 3 SC 43, Pam v. Mohammed (2008) 16 NWLR (Pt. 1112) 15 and D. Mustapha & Co. (Nig.) Ltd v. Union Bank Plc (2015) LPELR – 40380 (CA). He urged the Court to set aside the order of non-suit.

For the respondents, learned counsel contended that the appellants failed to appeal against the lower Court’s finding on memorandum of loss and the same deemed on accepted and binding on them. He relied on Abubakar v. Junaid (2020) LPELR-49959 (CA), Mbangu v. State (2013) 7 NWLR (Pt. 1352) 48, Gaiya v. Mabin (2015) LPELR-40404 (CA), Amale v. Sokoto L.G. (2012) 5 NWLR (Pt. 1292) 181, SCC (Nig.) Ltd. v. Anya (2012) 9 NWLR (Pt. 1305) 213, Uwazurike v. Nwachukwu (2013) 3 NWLR (Pt. 1342) 503, Nwaogu v. Atuma (2013) 11 NWLR (Pt. 1364) 177. He cited Adelusola v. Akinde (2004) 12 NWLR (Pt. 887) 295, Okadigbo v. Okadigbo (2012) LPELR – 20436, Adeyola v. Akinsan (1939) 15 NLR 10, Epi v. Aigbedion (1973) 1 NMLR 31 and Chikere v. Okegbe (2000) SCNJ 128. He asserted that the lower Court was right because there was no satisfactory evidence to give judgment to the respondents. He took the view that the tort of non-suit is a tool as a weapon for ensuring substantial justice in a matter. He referred to Lawal v. Aliyu (2014) LPELR – 24320, Dada v. Ogunremi (1967) NMLR 181, Mandillas & Karaberis v. Oridota (1972) 2 SC 47. He opined that the respondents showed sufficient interest in the suit but failed to tender the relevant document. He cited Nwakalor v. Kalambe (2014) LPELR – 23809 (CA).

Learned counsel further contended that the order of non-suit was not unfair because the appellants’ counter-claim must be proved separately. He relied on CBN v. NDIC (2016) 3 NWLR (Pt. 1498) 1, Kuti v. Alashe (2005) 17 NWLR (Pt. 955) 625, Ogbonna v. A. – G., Imo State (1992) 1 NWLR (Pt. 220) 647. He explained that without the order of non-suit, nobody could claim title to the property since the appellants’ counter-claim was dismissed. He cited Nwakalor v. Kalambe (supra), Ibekwe v. Nwosu (2011) 9 NWLR (Pt. 1251) 17, FBN Plc. v. Okon (2010) 15 NWLR (Pt. 1215) 57, Onibudo v. Akibu (1982) All NLR 207 at 224.

Learned counsel posited that the issue, failure to address the lower Court before making the order, was not specifically raised from any ground and so abandoned. He relied on Chinyere v. INEC (2019) LPELR – 49183 (CA), Aliyu v. Gwadabe (2014) LPELR – 23463, Cbn v. Ubana (2016) LPELR – 40366 (CA), Adejumo v. Olawaiye (2014) LPELR – 22997 (SC). He urged the Court to discountenance it. He asserted, in the alternative, that the non-suit was based on the peculiar circumstances of the case. He observed that the issue of invitation to address has an exception – where it is inevitable on the evidence on record and applicable law that order of non-suit is the only one that can be made. He cited Akpapuna v. Nzeka (1983) ANLR 350 at 361, Anyaduba v. Nigerian Renowned Trading Co. (1992) 6 SCNJ 204 at 217, Nwakalor v. Kalambe (supra); Onyia v. MTN Communications Ltd. (2015) LPELR – 25760 (CA). He reasoned that the provisions of the High Court Rules on non-suit cannot be obeyed in the interest of substantial justice. He referred to Sati v. Waya (2019) LPELR – 47763 (CA), Mfa v. Inongha (2014) (1397) 343. He described the non-compliance with the provision as an irregularity since it did not cause miscarriage of justice to the appellants. He cited Atume v. Bakodo (2020) LPELR – 49162 (CA), Pate v. Muhammad (2016) LPELR – 41175 (CA), Ahmed v. Ahmed (2013) 15 NWLR (Pt. 1377) 274, Dapianlong v. Dariye (2007) LPELR – 928 (SC), Fenu v. Bello (2019) LPELR – 47693 (CA). He maintained, in the alternative, that if the failure to invite parties to address the lower Court nullifies the order of non-suit, the appropriate consequential order will be to remit the matter to the lower Court for reconsideration. He cited Egbuchu v. Continental Merchant Bank Plc (2016) LPELR – 40053 (SC) and Nwakalor v. Kalambe (supra).

Resolution of the issue
A microscopic examination of the stubborn issue, clearly, reveals that it is highly loaded as it parades trinity points, videlicet: the propriety of the order of non-suit made by the lower Court, the fairness of it and its legality without submissions from the parties. The foremost one, which cries for the attention and resolution by this Court, is the last – the legitimacy of the order of non-suit in the absence of addresses by the parties. The rationale behind its premier position in the trilogy will unfold in the fullness of time in this judgment. Thus, the casus belli between the feuding parties orbits around the validity of the lower Court’s order of non-suit without submissions by the counsel for the parties. As expected, the warring parties expressed diametrically opposed viewpoints on the legality of the order. While the appellants disclaim/disown it, the respondents welcome it wholeheartedly.

In an abiding loyalty to the desire of the law, I have visited the records, the bible of the appeal, especially at the residence of the lower Court’s judgment which monopolises pages 145 -153 of the main. I am unable to locate, even with the prying eagle-eye of an appellate Court, where the parties, through counsel, made submission before the order of non-suit. In essence, the records, the touchstone of the appeal, endorse in toto the consensus ad idem of the contending parties on the lack of submission by counsel before the order.

Now, the main anchor of the appellants’ nursed grievance appertains to the viability of the lower Court’s order of non-suit when the parties did not make submissions about its propriety. They staked their agitation on the provision of Order 34 Rule 1 of the High Court Rules, 2012 which is in pari materia with the provision of Order 38 Rule 1 of the High Court Rules, 2019. Being the determinative provision and cynosure of this knotty point, it is imperative to mine it out, whence it is domiciled in the subsidiary statute, ipsissima verba, as follows:
1. Where satisfactory evidence entitling the Claimant or Defendant to judgment is not given, the Judge may suo motu or on application non-suit the Claimant, but the parties’ Legal Practitioners shall have the right to make submission about the propriety or otherwise of making such order.
Indisputably, the provision is rebellious to ambiguity. To this end, the law commands the Court to employ the literal rule on its interpretation, id est, to accord it its ordinary grammatical meaning without any embellishments. See Berliet v. Kachalla (1995) 12 SCNJ 147, Dingyadi v. INEC (No. 2) (2010) 18 NWLR (Pt.1224) 154, Kraus Thompson Org. Ltd. v. NIPSS (2003) NWLR (Pt.901), Uwazurike v. A.-G., Fed. (2007) 8 NWLR (Pt. 1035)1, Branco v. Wemabod Estate Ltd. (2011) 6 NWLR (Pt. 1243) 378, Olley v. Tunji (2013) 10 NWLR (Pt. 1362) 275. I will pay due allegiance to this legal commandment, in the construction of the provision, in order not to insult the law.
The provisions, which are similar to the comprehension-friendly provision, catalogued above, have fallen for interpretation before the Supreme Court. The apex Court has been consistent and unanimous on the dire consequence of making an order of non-suit without address by the parties. In Anyaduba v. N.R.T.C Ltd. (1992) 5 NWLR (Pt. 243) 535 at 566, Nnaemeka-Agu, JSC (of the blessed memory), incisively, proclaimed:
…there can no longer arise in Nigeria the question whether parties to suit are entitled to be heard on the propriety or otherwise of a non-suit before the order is made. It is true that parties no longer by themselves elect or ask that they be non-suited. They normally come to Court to urge the Court to enter judgment in their favour. As it is so, ordering a non-suit is in effect making an order which none of the parties has asked for. In a country like Nigeria where right to fair hearing is a constitutional right under Section 33 of the Constitution, it would be unconstitutional as being contrary to the principles of fair hearing to make any substantive order which none of the parties in litigation has asked for, no matter how benevolent it might seem. I therefore agree that for failure to invite the parties to address the Court on the propriety of a non-suit before ordering it, the appeal was rightly allowed.
See also Craig v. Craig (1966) 1 ALL WLR 173; Olufosoye v. Alabetutu (1968) NMLR 298 at 303; Anyakwo v. ACB Ltd. (1976) 2 SC 41; Aigbe v. Edokpolor (1977) 2 SC 1; Omoregbe v. Lawani (1980) 3-4 SC 180; Akpapuna v. Nzeka (1983) 2 SCNLR 1; Afolabi v. Adekunle (1983) 2 SCNLR 141 at 148; Olusanya v. Olusanya (1983) 1 SCNLR 134 at 139; Adeleke v. Raji (2002) 13 NWLR (Pt. 783) 142; A.G. Leventis Nig. Plc v. Akpu (2007) 17 NWLR (Pt. 1063) 416; Olufosoye v. Olorunfemi (1989) 1 NWLR (Pt. 95) 26; Kachalla v. Banki (2006) 8 NWLR (Pt. 982) 364; Egbuchu v. Continental Merchant Bank Plc (2016) 8 NWLR (Pt. 1513) 192.
The inflexible position of the law, discernible from these magisterial pronouncements in the avalanche of these ex cathedra authorities displayed above, is obvious. The requirement of counsel for the parties to address the Court prior to order of non-suit, as ingrained in the provision chronicled above, is mandatory. It is not directory, perhaps due to the employment of the word “shall” by the draftsman. A violation of the compulsory requirement constitutes an erosion of the parties’ inviolable right to fair hearing as entrenched and guaranteed by the sacrosanct provision of Section 36 (1) of the Constitution, as amended. Indisputably, the gains of order of non-suit in adjudication cannot be overemphasised. It affords the non-suited party, usually the plaintiff, the rare opportunity to have a second bite at the cherry vis-a-vis his cause of action. In that wise, he owns a chance to repair his case and coast to victory on it. However, it has its price and demerits. The order may occasion injustice to the plaintiff who may claim to have proved his case and is being subjected to another judicial journey over the case at the measured millipede speed of Court processes. It inflicts a serious ordeal on a defendant who will be compelled to engage in a second round of litigation with the plaintiff over the same matter. Methinks, it is as a result of all these major inconveniences/hardships against litigating parties that necessitate the crying need for addresses of counsel for the parties on the propriety or otherwise of order of non-suit. Perhaps, the address will neutralise the dismal effect of the prejudices that may germinate from an order of non-suit.
It admits of no argument that the lower Court fractured the provision of the High Court Rules supra when it failed/neglected to take submissions/addresses from counsel for the parties prior to the order of non-suit. The flagrant defilement of the provision of High Court Rules supra snowballed into an unwarranted infraction of their inviolate right to fair hearing as enshrined in the sacred provision of Section 36 (1) of the Constitution, as amended, the fons et origo of our corpus juris. Put simply, the appellant 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. Ayoku (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 their 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) and Thomas v. FJSC (2019) 7 NWLR (Pt. 1671) 284.

Where a party’s sacred 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 intractable web of nullity. See Nyesom 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; Abah v. Monday (2015) 14 NWLR (Pt. 1480) 569.

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. Nigerian Const. & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501, Bello v. INEC (2010) 8 NWLR (Pt. 1196) 342. Moreover, such a 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 Ajiboye 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 set aside a null order ex debito justitiae 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.

As already noted, the lower Court’s failure to take addresses from parties, which cried for recognition before it, was, with due respect, injurious to the law. It constituted a serious violation of the appellants’ inalienable right to fair hearing as ordained by the sacrosanct provision of Section 36 (1) of the Constitution, as amended. See Otapo v. Sunmonu (supra); Odedo v. Oguebego (supra). On the strength of the inelastic position of the law, dissected above, the lower Court’s decision of 8th July, 2013 and all other proceedings, anterior and posterior to it, were/are marooned in the murky ocean of nullity. On this score, the law compels me to mow them down with the unbiased judicial sword of this Court. In effect, I dishonour the respondents’ learned counsel’s salivating invitation to endorse the lower Court’s injudicious exercise that was contemptuous of the law. Such will amount to judicial sacrilege that irritates the law. In the end, I have no choice than to resolve the point in favour of the appellants and against the respondents.

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 point. It is, firmly, settled 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. Regd. Trustees, AKRCC (2019) 5 NWLR (Pt. 1665) 300, Fapohunda v. R.C.C.N. Ltd. (2019) 3 NWLR (Pt. 1658) 163. Furthermore, once an appellate Court intends to order, or orders, for a de novo hearing, the law forbids it from treating any other issues in the appeal or points 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 and Karaye v. Wike (2019) 17 NWLR (Pt. 1701) 355. I will pay due obeisance to this injunction of the law so as not to prejudice the issues that may crop up during the rehearing sessions.

On the whole, having resolved the decisive point in favour of the appellants, the destiny of the appeal is obvious. It is imbued with merit. Consequently, I allow the appeal. Accordingly, I set aside the proceedings and judgment of the lower Court, delivered on 8th July, 2013, for being a nullity. I remit the Suit No. LD/72/2010, filed by the respondents, to the Chief Judge of Lagos State for re-assignment to another Judge, other than Ibironke Harrison, J., for a fresh hearing. The parties shall bear the respective costs they incurred in the prosecution and defence of the fruitful appeal.

MUHAMMAD IBRAHIM SIRAJO, J.C.A.: I had the privilege of reading in draft the lead judgment prepared by my learned brother, OBANDE FESTUS OGBUINYA, JCA, just delivered. I agree with his reasoning and conclusion that the judgment of the lower Court be set aside for being a nullity.

His Lordship has painstakingly, exhaustively and dispassionately dealt with the subject and procedure of non-suit and its relationship with the fair hearing principle when ordered without the Court affording parties the opportunity to address it on that behalf. I adopt the erudite legal expositions of my Lord in the lead judgment as mine in allowing this appeal and declaring the proceeding and judgment of the lower Court a complete nullity. I abide by the consequential order made in the lead judgment.

PETER OYINKENIMIEMI AFFEN, J.C.A.: I had the advantage of reading, in draft, the leading judgment of my learned brother, Obande Festus Ogbuinya, JCA just delivered.

An order of non-suit donates to the claimant a second chance to prove his case; the rare opportunity of a second bite at the cherry, as it were. It is not an order that is granted as a matter of course or routine. A Court can only make an order of non-suit if it is provided for in the applicable rules of Court [see LION BUILDING v SHADIPE (1976) 12 SC 135 at 150 – 151, KHALIL & DIBBO v ODUMADE [2000] 11 WRN 1 at 10 -11 and TOWOLAWI v SAIPEM [2003] 34 WRN 35 at 521 and even then, the non-suit is ordered sparingly in appropriate cases only and in strict compliance with the rules of Court pursuant to which it is made. The Court is obligated to consider on the one hand whether an order of non-suit “would be wronging the defendant or whether on the other hand an order of dismissal of the suit would be wronging the plaintiff” (see FERDINAND GEORGE v UNITED BANK FOR AFRICA (1972) LPELR-1321(SC) at 16 – per Fatayi-Willams JSC], which underscores the need to hear the parties before making the order.

In the case that generated the present appeal, the lower Court recorded an order of non-suit sua sponte without hearing the parties, contrary to the emphatic dictates of Order 34 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 2012 (in force at the time the decision appealed against was made), which is to the effect that “the parties’ legal practitioners shall have the right to make submission about the propriety or otherwise of making such Order”. This costly failure or neglect on the part of the lower Court clearly undermined the parties’ right to fair hearing: a primordial procedural right enshrined in Section 36 of the 1999 Constitution that must be scrupulously observed whenever a person’s legal rights and obligations fall for determination in a Court of law, which is also a Court of equity. Being one of the essential cornerstones of adjudication by judicial process [see AMADI v THOMAS APLIN CO. LTD (1972) SC 228], breach of fair hearing goes to the foundational roots of a trial and the whole proceedings in the course of which the breach occurred and the decision reached thereat constitute a nullity. See BAMIGBOYE v UNIVERSITY OF ILORIN [1999] 10 NWLR (PT. 622) 290.

I accordingly record my concurrence with the reasoning and conclusion in the leading judgment. I too allow this appeal and set aside the proceedings of the lower Court, the judgment delivered on 8/7/13 inclusive. I abide by the consequential orders set out in the leading judgment.

Appearances:

K. O. P. Odidika, Esq., with him, B. O. Igwe, Esq. For Appellant(s)

E. E. Asia, Esq., with him, A. L. Obi, Esq. For Respondent(s)