INCORPORATED TRUSTEES OF LIVING FAITH CHURCH & ORS v. AYODEJI
(2022)LCN/16861(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Friday, July 01, 2022
CA/IB/102/2017
Before Our Lordships:
Saidu Tanko Hussaini Justice of the Court of Appeal
Mohammed Danjuma Justice of the Court of Appeal
Abba Bello Mohammed Justice of the Court of Appeal
Between
1. INCORPORATED TRUSTEES OF LIVING FAITH CHURCH (A.K.A. WINNERS CHAPEL) 2. CHIEF TAOREED TUNDE DADA 3. MR. TAOFIK MUSA 4. ALHAJI MONSURU OSENI 5. MR. TAIWO L. FALOHUN (Sued As Head & Accredited Representatives Of Adogun Atele Family) APPELANT(S)
And
COLONEL VICTORIA OMOLARA AYODEJI RESPONDENT(S)
RATIO
THE FUNDAMENTAL RIGHT TO FAIR HEARING
It is pertinent to state that the fundamental right to fair hearing guaranteed under Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) encompasses two natural justice twin pillars, namely – (i) audi alteram partem (hear the other party); and (i) nemo judex in causa sua (no one should be a judge in his own cause). As a cannon of natural justice, the principle of audi alteram partem places a duty upon the Judge to hear all sides to a dispute. See: LEADERS & COMPANY LTD v MUSA BAMAIYI (2010) LPELR-1771(SC), per Rhodes-Vivour, JSC at page 20, paras. D–E; SYLVA v INEC & ORS (2015) LPELR-24447(SC), per Ngwuta, JSC at page 41, paras. A–F; and ORUGBO v UNA (2002) LPELR-2778(SC), per Tobi, JSC at page 35, paras. B –C. The violation of the principle of audi alteram partem therefore, is an infringement of the fundamental human right to fair hearing, and once it is violated, it is irrelevant whether the decision reached subsequent thereto is correct. See: TUKUR v GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (Pt. 117) 517; VICTINO FIXED ODDS LTD v OJO & ORS (2010) LPELR-3462(SC), per Fabiyi, JSC at page 14, para. A–B; and PAN AFRICAN INT. INCORP. & ORS v SHORELINE LIFEBOATS LTD & ANOR (2010) LPELR-2897(SC), per Tabai, JSC at pages 10–11, para. B.
In its recent decision in ADEGBANKE v OJELABI & ORS (2021) LPELR-54992(SC), the Supreme Court, per Saulawa, JSC underscored some of the fundamental requirements of fair hearing when it held at pages 51–52, paras. A–B, as follows:
Fundamentally, there are some basic attributes of fair hearing:
(i) That the Court shall accord hearing to both sides in regard to all material issues or points in the case before reaching a decision which may be prejudicial to any of the parties thereon: SHELDON VS BROMFIEL JUSTICES (1964) 2 QB 573 AT 578;
(ii) That the Court shall give equal treatment, opportunity and consideration to all the parties concerned: ADIGUN VS. AG, OYO STATE (1987) 1, NWLR (PC 53) 678.
(iii) That the proceedings of the Court shall be held in public and all parties concerned shall have unrestricted access to and be notified of such avenue of public hearing; and
(iv) That having regard to the circumstances surrounding the case, in every material decision arrived at, justice must not only be done but manifestly and unquestionably be seen to have been done: R VS. SUSSEX JUSTICES, EXPARTE MC CARTHY (1924) 1 KB 256 AT 259; DEDUWA VS. OKORODUDU (1976) 10 SC 329. PER MOHAMMED, J.C.A.
THE POSITION OF LAW ON THE BASIC RIGHT OF A DEFENDANT IN LITIGATION
In a recent decision which I had the privilege to deliver in the case of RESORT DEVELOPERS LTD v OLUWANIYI & ANOR (2021) LPELR-56026(CA), this Court outlined some of the basic rights of a defendant in Court litigation. At pages 38–39, paras. A–B, the Court held as follows:
“It is important for me to state that in litigation, there are some basic rights of a Defendant which form a component of the natural justice principle of audi alteram patem (hear the other side), each of which a Defendant must be accorded the opportunity to exercise at appropriate stages of the proceedings. The failure by a Court or judex to accord a Defendant the opportunity to exercise any of these rights would amount to a breach of the Defendant’s right to fair hearing. These rights are:
(i) the right to be served with the allegation or claim against him (originating processes) and to be accorded ample opportunity to proffer his defence;
(ii) the right to defend himself personally or through a legal practitioner of his choice;
(iii) the right to be notified beforehand of every day of the proceedings to which he is unaware;
(iv) the right to present his own case (side) before the Court;
(v) the right to cross-examine the witnesses and challenge the evidence of the claimant(s) or his adversary(ies); and
(vi) the right to address the Court.
(vii) in criminal litigation, the Defendant has the added right to remain silent throughout the entire proceedings if he so chooses. The above are the rights of a Defendant in Court litigation and where a Court or judex fails to grant opportunity to the Defendant to exercise or enjoy any of those rights, it would constitute a breach of the Defendant’s right to fair hearing and render the proceedings a nullity.” PER MOHAMMED, J.C.A.
WHETHER OR NOT THE COURTS CAN DETERMINE THE RIGHTS OF PARTIES IN A SUIT AT THE INTERLOCUTORY STAGE OF PROCEEDINGS
It needs to be clearly restated that in Court litigation until the cause of action or the issues in contention are finally heard on the merit based on the parties’ respective cases and evidence led, it is impossible for the Court to determine at interlocutory stage any of the substantive issues relating to the extent of the respective rights and/or obligations of the parties in the suit. It is for that reason that Courts are enjoined to be careful not to decide at interlocutory stage, the rights of parties which ought to be substantively determined after the parties have been heard on the merit of the case. See: ABOSELDEHYDE LABORATORIES PLC v UNION MERCHANT BANK LTD & ANOR (2013) LPELR-20180(SC), per Peter-Odili, JSC at pages 52–53, paras. E–A; NNPC v FAMFA OIL LTD & ANOR (2009) LPELR-2023(SC), per Adekeye, JSC at pages 37–38, paras. F–B; and IN RE: ABDULLAHI (2018) LPELR-45202(SC), per Augie, JSC at pages 24 – 25, paras. E – D.
As stated earlier, the 2nd–5th Defendants, being parties to the Claimant’s suit, are entitled to be served with the processes in that suit, including all Motions on Notice made in it. The cases of NSA HOGAN NKUTE & ORS v CHIEF EYO EDEM ITA NDEM (supra); OKOMU OIL PALM CO. LTD v ISERIHIENRHIEN (supra); HONEYWELL FLOUR MILLS PLC v ECO BANK NIG LTD (supra); and CHIME v CHIME (supra), were misconceived and misapplied by the trial Court, as those decisions made reference to parties to a suit. In NKUTE v NDEM (supra) for instance, this Court, per Omokri, JCA held that a person who is not a party to a suit, he is not bound by the outcome of a litigation when he did not have the opportunity to state his own side of the case in the course or matter and that is based on the latin principle “res inter alios judicata nullum alis praejudicium faciunt” – that matters adjudged in a cause do not prejudice those who were not parties to it. This was what was similarly decided in the other cases relied upon by the trial Court. A party, as referred to in those cases relied upon by the trial Court, mean a party to a suit and not a party who will be affected by an interlocutory application made within that suit. It must be restated that once a person is made a party to a suit, he is entitled to participate in every proceeding within the suit. His right to participate enures to him by virtue of his being a party to the suit. The Court is therefore, duty bound to ensure that opportunity is given to the party, and indeed all parties in the suit, to so participate. PER MOHAMMED, J.C.A.
ABBA BELLO MOHAMMED, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Ogun State Ota, (“the lower Court”), delivered on 12th January, 2017 in Suit No. HCT/303/15. The Respondent herein, as Claimant, commenced his suit against all the Appellants as Defendants vide a Writ of Summons filed on 21st July, 2015, which he accompanied with a Motion on Notice for interlocutory injunction filed on the same date seeking for the following orders:
1. AN ORDER of this Honourable Court restraining the 1st Defendant/Respondent, its beneficiaries in title, agents, privies and servants from further trespassing, fencing, dealing with or interfering in whatsoever manner either by transferring, alienating and/or assigning portions of the land in dispute situate, lying and being at off Oguntedo Road, Lafenwa Via Itele, Ado-Odo/Ota Local Government Area, Ogun State measuring 7.064 Acres (28588.141 sq. mts) more particularly delineated and demarcated in Survey Plan No. YOK/167/23/2008/09, drawn by Alhaji Y. O. Keshinro, a Registered Surveyor, dated the 16th August, 2008, to any person or group of persons whosoever, pending the hearing and determination of the substantive suit.
2. AN ORDER OF DEMOLITION of the purported illegal fence/structures raised by the 1st Defendant on the Claimant’s land in dispute.
3. AN ORDER SUSPENDING ALL CONSTRUCTION/FENCING WORKS being presently carried on by the 1st Defendant on the land in dispute pending the hearing and determination of the substantive suit.
The Respondent’s originating processes and Motion on Notice of 21st July, 2015 were duly served on the 1st Appellant. The 2nd–5th Appellants were however yet to be served with the originating processes and the said Motion on Notice, when on the 15th of December, 2015 the lower Court proceeded to hear the said Motion for Interlocutory Injunction in the presence of only the 1st Appellant’s Counsel. The 2nd–5th Appellants who were not served with the originating processes and the Motion on Notice, were absent and unrepresented. The lower Court subsequently delivered its ruling on the application on the 26th of January, 2016 granting the injunction as sought by the Respondent.
By a Motion on Notice dated 29th January, 2016, the 2nd–5th Appellants applied to the lower Court to set aside the entire proceedings of 15th December, 2015 and the ruling of 26th January, 2016 for lack of jurisdiction. After hearing the parties, the lower Court delivered its ruling on the 12th of January, 2017 dismissing the 2nd–5th Appellants’ application, holding, inter alia, that the 2nd–5th Appellants have failed to show how the order of injunction granted against the 1st Appellant affected them, and that the 1st Appellant’s written address adopted in support of the 2nd–5th Appellant’s application was in bad faith. The ruling of the lower Court is at pages 154–158 of the Record of Appeal.
Dissatisfied with that ruling of the lower Court, the Appellants brought this appeal vide a Notice of Appeal filed on 26th January, 2017 containing three grounds of appeal. The Notice of Appeal is at pages 159–161 of the Record. The Record of Appeal transmitted on the 16th of March, 2017 was deemed properly transmitted by this Court on 9th May, 2022. In furtherance of the appeal, the parties filed and exchanged briefs of argument which they adopted on the 9th of May, 2022, the day the appeal was heard.
In the Appellants’ Brief of Argument filed on 27th March, 2017 and deemed properly filed on 9th May, 2022, the J. O. Mbamalu, Esq, of learned Counsel for the Appellants distilled the following sole issue for determination from all the three grounds of appeal:
Whether the proceedings of the trial Court conducted in this suit on 15/12/15 observed due process, to disculpate that Court’s dismissal of the 2nd–5th Appellants’ MOTION dated 29/01/16, to set aside that proceeding and in the process oppugned the 1st Appellant’s Written Address filed and adopted in support of the 2nd–5th Appellants’ MOTION as an act of bad faith.
On her part, the Respondent also distilled the following sole issue in her Brief of Argument which was settled by Ayo Daramola Esq and filed on 26th November, 2020 and deemed properly filed on 9th May, 2022:
Whether the 1st Defendant/Appellant’s appeal is legally sustainable, viz-a-viz her complaint on the proceeding of the learned trial Court conducted on the 15th of December, 2015.
This appeal essentially is against the ruling of the lower Court refusing to set aside its proceedings of 15th December, 2015 and its ruling of 26th January, 2016 for lack of jurisdiction. I am therefore, of the view that the sole issue for determination
Whether the lower Court was right to refuse the application of the 2nd–5th Appellants’ application of 29th January, 2016 seeking to set aside its proceedings of 15th December, 2015 and ruling of 26th January, 2016 for lack of jurisdiction.
APPELLANTS’ SUBMISSIONS:
Learned Counsel for the Appellants submitted that the proceedings of the lower Court conducted on the 15th of December, 2015 ought to be dissolved. He pointed out that before then, the Respondent had informed the lower Court that the 2nd–5th Appellants were yet to be served with the processes in the suit, as a result of which the lower Court ordered that the notice of the hearing of the Respondent’s motion for injunction be issued and served on them. He added that on the 15th of December, 2015 when the Respondent’s motion was heard, none of the Court processes including the writ, the statement of claim and the motion for injunction was served on the 2nd–5th Appellants. He added that even the hearing notice ordered to be served on them was not issued or served, but the Respondent’s motion for injunction was moved on the said 15th December, 2015 in the absence of the 2nd–5th Appellants and was granted by the lower Court on 26th January, 2015,
Learned Counsel submitted that in view of the absence of the 2nd–5th Appellants on the 15th of December, 2015, it was incumbent upon the lower Court to first ascertain whether the 2nd–5th Appellants were duly informed of the proceedings of that date before entertaining the motion for injunction. He argued that failure to do so rendered the proceedings of 15th December, 2015 a nullity. He cited DAN HAUSA LTD v PANATRADE LTD (1993) 6 NWLR (Pt. 298) 204; MADUKOLU v NKEMDILIM (1962) 2 SCNLR 341.
Learned Counsel for the Appellants also submitted that the lower Court failed to consider the issue of jurisdiction raised in the Appellants’ motion dated 29th January, 2016 which sought to set aside the entire proceedings of 15th January, 2015 and the consequential ruling rendered on 26th January, 2016 for lack of jurisdiction. He contended that jurisdiction is a threshold issue and once raised it ought to be resolved in order to avoid waste of judicial time. He relied on A.G. FEDERATION v SODE (1989) 1 NWLR (Pt. 128) 500 at 542, paras. F–G, and argued that had the lower Court averted its mind to the lack of due process, it would have set aside the proceedings without determining the issue of privity of estate between the 1st Appellant and the 2nd–5th Appellants and derecognizing the 2nd–5th Appellants as parties to the Claimant’s suit. He added that the authorities relied upon by the lower Court to derecognize the 2nd–5th Appellants are inapplicable to this case. Relying on NDULUE v ONYEKWULUNNE (2002) FWLR (Pt. 110) 1957 at 1964. Counsel argued that the 2nd–5th Appellants’ constitutional right to be heard was denied by the lower Court in the proceedings of 15th December, 2015.
Learned Counsel further submitted that the fact that the 1st Appellant participated in the proceedings of 15th December, 2015 cannot estop the 1st Appellant from participating in the proceedings of 17th October, 2016 and in supporting the 2nd–5th Appellants’ application seeking to set aside the proceedings of 15th December, 2015. He argued that the lower Court erred when it ascribed bad faith to the 1st Appellant’s written address in support of the 2nd–5th Appellants’ motion, since the application relates to issue of jurisdiction. He relied on SYLVA v INEC (2018) All FWLR (Pt. 810) 1121 at 1161, para. B; IBRAHIM v LAWAL (2015) All FWLR (Pt. 799) 990; and ELUGBE v OMOKHA (2004) 18 NWLR (Pt. 905) 319 at 332. He urged the Court to allow the appeal.
RESPONDENT’S SUBMISSIONS:
Learned Counsel for the Respondent submitted that the 2nd–5th Appellants’ appeal is devoid of merit since they are not affected and they have failed to show how they are affected by the grant of the order made by the trial Court on 26th January, 2015 in the motion dated 21st January, 2015. He cited HONEYWELL FLOUR MILLS PLC v ECO BANK NIG LTD (2016) 16 NWLR (Pt. 1539); OBIOR v NNAMUA (2014) LPELR-23641(CA); and OKOMU OIL PALM CO. LTD v ISERIHIENRHIEN (2001) 6 NWLR (Pt. 710) 660.
Learned Counsel further submitted that on the 15th of December, 2015, the trial Court heard arguments of the concerned parties alone which were the Claimant and the 1st Defendant only. He referred this Court to pages 145–153 of the Record of Appeal. He cited the case of MADUKOLU v NKENDILIM (1992) 9 NWLR (Pt. 263) 69, where the conditions to the assumption of jurisdiction by a Court were stated. He argued that the motion on notice dated 21st July, 2015 is targeted at the 1st Defendant/Respondent who was actively making constructions on the land in dispute while the matter was pending in the lower Court. He added that the application that culminated in the grant of the consequential order by the lower Court sought to he set aside by the 2nd–5th Appellants was duly served on the 1st Defendant/Appellant whose acts on the land in dispute was to be restrained. Counsel wondered how the consequential order had affected the 2nd–5th Appellants. Citing HONEYWELL FLOUR MILLS PLC v ECO BANK NIG LTD (supra); and CHIME v CHIME (2001) LPELR-849(SC). Counsel submitted that since the 2nd–5th Appellants were not parties to the application for interlocutory injunction at the trial Court and the consequential order was not made against them, their appeal to set aside the ruling of the lower Court is unmeritorious. He urged this Court to dismiss same.
RESOLUTION OF THE SOLE ISSUE:
Because this appeal is essentially a challenge to the competence of the proceedings of the Court of 15/12/2015 and the rulings of the trial Court emanating therefrom, it is pertinent that I start the resolution of the sole issue for its determination by reproducing the relevant record of proceedings of the trial Court. For ease of later reference, I reproduce below the proceedings of the trial Court for the dates of 20th October, 2015, 3rd November, 2015, 23rd November, 2015 and 15th December, 2015 which are at pages 146–147 of the Record of Appeal:
IN THE HIGH COURT OF JUSTICE
OGUN STATE OF NIGERIA
IN THE OTA JUDICIAL DIVISION
HOLDEN AT OTA
BEFORE THE HONOURABLE JUSTICE O. OGUNFOWORA – JUDGE
ON TUESDAY THE 20TH DAY OF OCTOBER, 2015
SUIT NO: HCT/303/2015
BETWEEN:
COLONEL VICTORIA OMOLARA AYODEJI – CLAIMANT
AND
INC TRUSTEES OF LIVING FAITH CHURCH & 4 ORS – DEFENDANTS
Parties absent.
C. O. Ewuosho appears for the Claimant.
Ewuosho: We have an application which was served only yesterday on the 1st defendant while the other parties are yet to be served. We ask for an adjournment to enable service on the other parties. Hearing Notice to be issued to Defendants.
(Sgd)
O. Ogunfowora – Judge
20/10/2015
ON TUESDAY THE 3RD DAY OF NOVEMBER, 2015
Parties absent.
C. O. Ewuosho appears for the Claimant.
Ewuosho: We are yet to serve the 2nd–5th Defendants with the processes in this suit including the outstanding application for interlocutory injunction. We ask for adjournment to enable us serve.
Court: Adjourned to 23/11/2015 for hearing of outstanding application as Hearing Notice is ordered to be served on the 1st Defendant.
ON MONDAY THE 23RD DAY OF NOVEMBER, 2015
Alimi Olusola (Mrs) Legal Officer represents the 1st Defendant is present.
F. J. Ayemere appears for the 1st Defendant.
Ayemere: We have filed a Counter Affidavit and a Written Address to the outstanding application for injunction. We are not aware of an adjournment.
Court: Adjourned to 15/12//2015 for hearing of outstanding application. Hearing Notice to issue to absent parties/Counsel.
(Sgd)
O. Ogunfowora – Judge
23/11/2015
ON TUESDAY THE 15TH DAY OF DECEMBER, 2015
Parties absent.
Oludare Adesanya. Olowu O. Olowu & C. O. Ewuosho appear for the Claimant.
F. J. Ayemere appears for the 1st Defendant.
Adesanya: We have an outstanding interlocutory application for injunction against the 1st Defendant which we are ready to move.
Ayereme: We have responded, we are also ready.
Court: Kindly move your application.
Adesanya: We pray by our application of 21/7/2015 filed on 17/9/2015 for the reliefs contained on the Motion Paper. We rely on the affidavit in support and the attached exhibits as we adopt our written address in urging the Court to grant the application.
Ayemere: In opposition, we have filed a Counter Affidavit of 23/11/2015 which we rely on together with the attached exhibits. We adopt our written address as we urge the Court to dismiss the application.
Court: Adjourned to 21/1/2016 for Ruling.
The Record of Appeal at pages 147–148, shows that after the ruling of the trial Court granting the interlocutory injunction which is at pages 149-153 of the Record, the 2nd–5th Defendants applied to set aside the proceedings of 15/12/2015 and the said ruling of 26th January, 2016 for lack of jurisdiction. After hearing the application, the trial Court then delivered its ruling dismissing the application, which ruling is the subject of this appeal.
From the record of proceedings of the lower Court reproduced above, it is easily discernible that when on the 20th October, 2015 the trial Court was informed on that the Claimant’s application for interlocutory injunction was only served on the 1st Defendant and yet to be served on the 2nd–5th Defendants, the Court had adjourned the matter and ordered hearing notice to issue to the Defendants. Again, on the 3rd of November, 2015, when the trial Court was informed that the processes in the suit, which includes the application for interlocutory injunction, were yet to be served on the 2nd–5th Defendants, the trial Court had adjourned the matter to 23/11/2015 for hearing of the application, this time ordering that hearing notice be served on the 1st Defendant only, even though all the five Defendants were absent on that day.
On the return date of 23/11/2015, learned Counsel for the 1st Defendant who was the only one that appeared, had informed the trial Court that he had filed a counter affidavit and written address in opposition to the Claimant’s application for interlocutory injunction. The trial Court then adjourned the matter to 15/12/2015 for hearing of the application, ordering that hearing notice be issued to absent parties/counsel.
On the return date of 15th of December, 2015 however, the trial Court proceeded to hear the learned Counsel for the Claimant and the 1st Defendant on the interlocutory application for injunction in the absence of the 2nd–5th Defendants, despite the fact that the processes and hearing notice was not served on the 2nd–5th Defendants as earlier ordered by the Court.
It is therefore clear from the above reproduced record of proceedings of the lower Court that on that day of 15/12/2015 when the trial Court proceeded to hear the interlocutory application for injunction, the 2nd–5th Defendants (who are 2nd–5th Appellants herein), were neither served with the processes in the suit, including the motion for interlocutory injunction, nor hearing notice for that days’ proceedings. In other words, being parties to the suit as 2nd–5th Defendants, they were not served with any of the processes in the suit when the trial Court heard and determined the motion for interlocutory injunction.
It is pertinent to state that the fundamental right to fair hearing guaranteed under Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) encompasses two natural justice twin pillars, namely – (i) audi alteram partem (hear the other party); and (i) nemo judex in causa sua (no one should be a judge in his own cause). As a cannon of natural justice, the principle of audi alteram partem places a duty upon the Judge to hear all sides to a dispute. See: LEADERS & COMPANY LTD v MUSA BAMAIYI (2010) LPELR-1771(SC), per Rhodes-Vivour, JSC at page 20, paras. D–E; SYLVA v INEC & ORS (2015) LPELR-24447(SC), per Ngwuta, JSC at page 41, paras. A–F; and ORUGBO v UNA (2002) LPELR-2778(SC), per Tobi, JSC at page 35, paras. B –C. The violation of the principle of audi alteram partem therefore, is an infringement of the fundamental human right to fair hearing, and once it is violated, it is irrelevant whether the decision reached subsequent thereto is correct. See: TUKUR v GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (Pt. 117) 517; VICTINO FIXED ODDS LTD v OJO & ORS (2010) LPELR-3462(SC), per Fabiyi, JSC at page 14, para. A–B; and PAN AFRICAN INT. INCORP. & ORS v SHORELINE LIFEBOATS LTD & ANOR (2010) LPELR-2897(SC), per Tabai, JSC at pages 10–11, para. B.
In its recent decision in ADEGBANKE v OJELABI & ORS (2021) LPELR-54992(SC), the Supreme Court, per Saulawa, JSC underscored some of the fundamental requirements of fair hearing when it held at pages 51–52, paras. A–B, as follows:
Fundamentally, there are some basic attributes of fair hearing:
(i) That the Court shall accord hearing to both sides in regard to all material issues or points in the case before reaching a decision which may be prejudicial to any of the parties thereon: SHELDON VS BROMFIEL JUSTICES (1964) 2 QB 573 AT 578;
(ii) That the Court shall give equal treatment, opportunity and consideration to all the parties concerned: ADIGUN VS. AG, OYO STATE (1987) 1, NWLR (PC 53) 678.
(iii) That the proceedings of the Court shall be held in public and all parties concerned shall have unrestricted access to and be notified of such avenue of public hearing; and
(iv) That having regard to the circumstances surrounding the case, in every material decision arrived at, justice must not only be done but manifestly and unquestionably be seen to have been done: R VS. SUSSEX JUSTICES, EXPARTE MC CARTHY (1924) 1 KB 256 AT 259; DEDUWA VS. OKORODUDU (1976) 10 SC 329.
In this appeal, the record of proceedings of the lower Court reproduced above, has shown that the 2nd–5th Appellants who were the 2nd–5th Defendants in the suit, were neither served with processes in the suit, including the motion on notice for interlocutory injunction, nor a hearing notice of the date of 15/12/2015 when the said motion for interlocutory injunction was heard. This fact was even acknowledged in the ruling of the trial Court dismissing the 2nd–5th Appellants’ application seeking to set aside the proceedings of that date and the subsequent ruling which resulted therefrom for lack of jurisdiction.
In fact, in that ruling of 12/01/2017 refusing to set aside its proceedings of 15/12/2015, the trial Court acknowledged that it indeed proceeded to hear the Claimant’s application for injunction on the 15th of December, 2015 in the absence of and without any notice to the 2nd–5th Defendants. The trial Court then proceeded to rationalize same by stating that the injunction was sought only against the 1st Defendant (1st Appellant). Specifically, at page 155 of the Record of Appeal, the trial Court stated as follows:
“On the 15th December, 2015, this Court heard the interlocutory injunction only upon the processes filed by the Claimant/Applicant and the 1st Defendant only without having the 2nd and 5th as the injunctive orders sought were solely against the 1st Defendant. By the ruling delivered on 21st January 2016 and based on the facts of the case as shown from the response processes of the parties to the application which show the 2nd–5th Defendants had divested themselves of their title in the entirety of the land in dispute to the 1st Defendant and sister agency the Incorporated Trustees of World Mission Agency (WMA)… The question that actually calls for determination in this matter is whether a person who is not a party to a decision is bound by the outcome of the litigation and can seek to have the decision set aside when he is not a party to it. The settled position of the law has been crystallized in the latin maxim Res inter alios judicata nullum alis praejudicium faciunt, i.e. matter adjudged in a cause do not prejudice those who were not parties to it.”
On the basis of its above rationale and relying on the cases of NSA HOGAN NKUTE & ORS v CHIEF EYO EDEM ITA NDEM (2009) LPELR-4632(CA); OKOMU OIL PALM CO. LTD v ISERIHIENRHIEN (2001) 6 NWLR (Pt. 710) 660; HONEYWELL FLOUR MILLS PLC v ECO BANK NIG LTD (2016) LPELR-40221(CA); and CHIME v CHIME (2001) LPELR-849(SC), the learned trial Judge held at page 158 of the Record of Appeal as follows:
“Applying the necessary modifications to the instant case it is clear that the 2nd–5th Defendants whose case is similar as contained therein must show that they have not been served with the proceedings and that the Order herein affected them. The 2nd–5th Defendants have clearly failed to show how this decision affected them as the terms of the Order clearly shows that it affected only the 1st Defendant and having further earlier found that as vendors to the 1st Defendant the definition of a privy does not also legally affect them. This application is thus liable to be struck out.
As regards the “application” of the 1st Defendant and adoption of the arguments of the 2nd–5th Defendants the diction of Obeji (sic) JCA (Oseji) in HONEYWELL FOUR MILLS PLC v ECO BANK NIG LTD (supra) shows that the adoption of such is in bad faith and should not be entertained but discountenanced as he stated as follows:
“It is therefore not open to every party to a proceeding to make such an officious complaint, because if such complaint is sustainable it will yield startling results by giving an aggrieved party to the suit a second bite at the cherry”.
In the light of the above, this application fails and is accordingly dismissed with N50,000 costs.”
With the greatest respect to the learned trial Judge, he seems to have misunderstood and misapplied the decisions in those judicial authorities to the factual circumstances before him.
Firstly, the 2nd–5th Appellants herein were parties to the suit of the Complainant before that Court and their names as 2nd–5th Defendants were contained in both the originating processes (Writ of Summons and Statement of Claim at pages 1–30 of the Record), as well as the Claimant’s Motion for Interlocutory Injunction at pages 31–60 of the Record. Now, it is trite that once a person is made a party to a suit, he is entitled to be heard on every material issue or aspect of that case before a decision is made on it. It is therefore, not open to the trial Court to determine peremptorily without giving the 2nd–5th Appellants a hearing or an opportunity of being heard, that they are not affected by the application for interlocutory injunction. It is for the 2nd–5th Appellants to say so. And it is in order to achieve the imperative of hearing all parties to a suit that service of the processes in the suit on the parties, as well as a hearing notice where required, is fundamental.
The Respondent as claimant had instituted the suit against the five defendants including the 2nd–5th Appellants who were the 2nd–5th Defendants. They were therefore entitled not only to be served with all processes in the suit, including the Motion for Interlocutory Injunction but also with hearing notice of the date when the matter was to come up before the lower Court.
In a recent decision which I had the privilege to deliver in the case of RESORT DEVELOPERS LTD v OLUWANIYI & ANOR (2021) LPELR-56026(CA), this Court outlined some of the basic rights of a defendant in Court litigation. At pages 38–39, paras. A–B, the Court held as follows:
“It is important for me to state that in litigation, there are some basic rights of a Defendant which form a component of the natural justice principle of audi alteram patem (hear the other side), each of which a Defendant must be accorded the opportunity to exercise at appropriate stages of the proceedings. The failure by a Court or judex to accord a Defendant the opportunity to exercise any of these rights would amount to a breach of the Defendant’s right to fair hearing. These rights are:
(i) the right to be served with the allegation or claim against him (originating processes) and to be accorded ample opportunity to proffer his defence;
(ii) the right to defend himself personally or through a legal practitioner of his choice;
(iii) the right to be notified beforehand of every day of the proceedings to which he is unaware;
(iv) the right to present his own case (side) before the Court;
(v) the right to cross-examine the witnesses and challenge the evidence of the claimant(s) or his adversary(ies); and
(vi) the right to address the Court.
(vii) in criminal litigation, the Defendant has the added right to remain silent throughout the entire proceedings if he so chooses. The above are the rights of a Defendant in Court litigation and where a Court or judex fails to grant opportunity to the Defendant to exercise or enjoy any of those rights, it would constitute a breach of the Defendant’s right to fair hearing and render the proceedings a nullity.”
In its earlier proceedings of 20th October, 2015, 3rd November, 2015, and 23rd November, 2015 which I have earlier reproduced above, the lower Court had, in fact, recognized the right of the 2nd–5th Appellants as parties to the suit, when it adjourned the hearing of the Claimant’s application after being informed that the 2nd-5th Appellants were yet to be served with the processes and ordered hearing notice to be served on them. Yet, on 15/12/2015, the trial Court proceeded to hear the Respondent’s motion for interlocutory injunction in the absence of evidence of service of the processes and hearing notice on the 2nd–5th Appellants. But it is clearly evident even on the face of the said Motion on Notice for Injunction contained at page 34 of the Record, that the 2nd–5th Appellants were reflected as 2nd to 5th Defendants, which means that application was meant to be on notice to not only the 1st Appellant (1st Defendant), but also to the 2nd–5th Appellants (2nd–5th Defendants). It was therefore wrong and in breach of the fair hearing right of the 2nd–5th Appellants for the trial Court to proceed to hear the application without ensuring that the said Motion on Notice as well as notice for its hearing were served on the 2nd–5th Appellants. Service of Court processes on parties to a suit is fundamental in adjudication. The failure to serve Court processes where required affects the fair hearing rights of the parties and the competence or jurisdiction of the Court to entertain the matter: ALH. Y. DAN HAUSA & CO. LTD. v PANATRADE LTD. (1993) LPELR-420(SC), per Ogwuegbu, JSC at pages 16–17, paras. F–A; and ONWUBUYA & ORS v IKEGBUNAM (2019) LPELR-49373(SC), per Aka’ahs, JSC at page 17 paras. B–D.
The trial Court’s excuse that the Motion for Interlocutory Injunction only affects the 1st Defendant and not the 2nd–5th Defendants is also presumptive, because being an impartial arbiter, the Court can only reach such a conclusion after it has completed the cycle of hearing all the parties to the suit, including the 2nd–5th Appellants, or at least giving all parties the opportunity of being heard. The trial Court’s finding based on only the processes filed by Claimant and the 1st Defendant, that the 2nd–5th Defendants had divested their interest to the 1st Defendant is also presumptive, apart from the fact title is in issue in the suit in which the Claimant is claiming title through the 2nd–5th Defendants, the side of the 2nd–5th Defendants was not heard by the trial Court in the proceedings of 15th December, 2015 before the trial Court made that finding.
It needs to be clearly restated that in Court litigation until the cause of action or the issues in contention are finally heard on the merit based on the parties’ respective cases and evidence led, it is impossible for the Court to determine at interlocutory stage any of the substantive issues relating to the extent of the respective rights and/or obligations of the parties in the suit. It is for that reason that Courts are enjoined to be careful not to decide at interlocutory stage, the rights of parties which ought to be substantively determined after the parties have been heard on the merit of the case. See: ABOSELDEHYDE LABORATORIES PLC v UNION MERCHANT BANK LTD & ANOR (2013) LPELR-20180(SC), per Peter-Odili, JSC at pages 52–53, paras. E–A; NNPC v FAMFA OIL LTD & ANOR (2009) LPELR-2023(SC), per Adekeye, JSC at pages 37–38, paras. F–B; and IN RE: ABDULLAHI (2018) LPELR-45202(SC), per Augie, JSC at pages 24 – 25, paras. E – D.
As stated earlier, the 2nd–5th Defendants, being parties to the Claimant’s suit, are entitled to be served with the processes in that suit, including all Motions on Notice made in it. The cases of NSA HOGAN NKUTE & ORS v CHIEF EYO EDEM ITA NDEM (supra); OKOMU OIL PALM CO. LTD v ISERIHIENRHIEN (supra); HONEYWELL FLOUR MILLS PLC v ECO BANK NIG LTD (supra); and CHIME v CHIME (supra), were misconceived and misapplied by the trial Court, as those decisions made reference to parties to a suit. In NKUTE v NDEM (supra) for instance, this Court, per Omokri, JCA held that a person who is not a party to a suit, he is not bound by the outcome of a litigation when he did not have the opportunity to state his own side of the case in the course or matter and that is based on the latin principle “res inter alios judicata nullum alis praejudicium faciunt” – that matters adjudged in a cause do not prejudice those who were not parties to it. This was what was similarly decided in the other cases relied upon by the trial Court. A party, as referred to in those cases relied upon by the trial Court, mean a party to a suit and not a party who will be affected by an interlocutory application made within that suit. It must be restated that once a person is made a party to a suit, he is entitled to participate in every proceeding within the suit. His right to participate enures to him by virtue of his being a party to the suit. The Court is therefore, duty bound to ensure that opportunity is given to the party, and indeed all parties in the suit, to so participate.
In the instant appeal, the parties to the Claimant’s (Respondent’s) suit (and even the Claimant’s Motion for Interlocutory Injunction) are the Claimant and the five Defendants (Appellants), including the 2nd–5th Appellants who are the 2nd–5th Defendants. Hence, as parties to the suit and the interlocutory motion for injunction, the 2nd–5th Appellants have the right to be heard on the said motion and indeed on all material aspects of that suit. As stated earlier, it is a fundamental requirement of natural justice that all parties to a matter must be heard before a decision is made thereon: audi alteram partem: LEADERS & COMPANY LTD v MUSA BAMAIYI (supra); SYLVA v INEC & ORS (supra); and ORUGBO v UNA (supra). From the printed Record of this appeal, it is evident that when on the 15th of December, 2015 the trial Court proceeded to hear the Claimant’s Motion on Notice for Interlocutory Injunction, neither the originating processes nor the said motion and hearing notice were served on the 2nd–5th Appellants there was no evidence that the said motion and hearing for that date were served on the 2nd–5th Defendant. Thus, the 2nd–5th Appellants were not given the opportunity to participate and be heard on the said application.
In stating the effect of failure to serve hearing notice the Supreme Court, per Kekere-Ekun, JSC held NUT TARABA STATE & ORS v HABU & ORS (2018) LPELR-44057(SC), at pages 15-16, that:
“…Failure to serve hearing notice on a party entitled to such service is a fundamental defect in the proceedings and fatal to the case. It amounts to a breach of the right of the party who should have been served to a fair hearing, a right guaranteed by Section 36(1) of the 1999 Constitution, the consequence of such failure is that the Court lacks jurisdiction to entertain the proceedings, which are thereby rendered null and void.”
See also: ADALMA TANKERS BUNKERING SERVICES LTD & ANOR v CBN & ORS (2022) LPELR-57036(SC), per Peter-Odili, JSC at pages 36–37, paras. F–E; TECHNIP v AIC LTD & ORS (2015) LPELR-25386(CA), per Oseji, JCA (as he then was) at pages 14-15 paras. B–C; WEMA BANK NIG. LTD. v ODULAJA (2000) FWLR (Pt. 17) 138 at 142–143, paras. A–C; and SKENCONSULT (NIG.) LTD & ANOR v UKEY (1981) 1 SC 6.
From the foregoing, it is evident that the proceedings of the trial Court of 15th of December, 2015 in which it proceeded to hear the Respondent’s Motion for Interlocutory injunction when the 2nd–5th Appellants, who were parties to the suit were neither served with the originating processes in the suit nor the said motion for interlocutory injunction and were not served with hearing notice of that date, was conducted in breach of the fair hearing rights of the 2nd–5th Appellants guaranteed under Section 36(1) of the 1999 Constitution. The said proceeding of 15th December, 2015 was therefore conducted by the trial Court without jurisdiction. Therefore, the proceeding of that date, including the ruling of the trial Court of 26th January, 2016 granting the interlocutory injunction are null and void. I so hold.
The issue of jurisdiction is fundamental and crucial to adjudication. Hence, proceedings conducted by a Court without jurisdiction is liable to be set aside either by the same Court on application of any of the parties or even suo motu, or it may be set aside by an appellate Court. See: EZEOKAFOR VS. EZEILO (1999) LPELR-1209(SC), per Achike, JSC at pages 22–23; UGBA & ANOR v SUSWAM & ORS (2014) 4–5 S.C. 47; BELLO v INEC & ORS (2010) 8 NWLR (Pt. 1196) 342; and DURU & ORS v AGU & ORS (2020) LPELR-51955(CA), per Yahaya, JCA at pages 33–37, paras. E–A. The trial Court was therefore wrong to have imputed bad faith on the 1st Appellant merely because it participated in the proceedings of 17th October, 2016 and adopted a written address supporting the 2nd–5th Appellants’ application seeking to set aside the proceedings of 15th December, 2015 for lack of jurisdiction.
Being an issue of jurisdiction same can be raised by any of the parties at any time, even on appeal to the Apex Court: STANBIC IBTC BANK PLC v LONGTERM GLOBAL CAPITAL LTD & ORS. (2021) LPELR-56661(SC), per Aboki, JSC at pages 21–22, paras. E–B; and CONTROLLER GENERAL OF PRISONS & ORS v ELEMA & ANOR (2021) LPELR-56219(SC), per Agim, JSC at page 24 paras. D – E.
It is for all the foregoing reasons that I resolve the sole issue in this appeal in favour of the Appellants and hold that the lower Court was wrong to refuse the application of the 2nd–5th Appellants’ application of 29th January, 2016 seeking to set aside its proceedings of 15th December, 2015 and ruling of 26th January, 2016 for lack of jurisdiction.
In consequence, I hold that this appeal has merit. It is hereby allowed. Accordingly, it is hereby ordered as follows:
(i) The entire proceedings of the High Court of Ogun State, Ota Division, conducted on 15th December, 2015 in Suit No. HCT/303/15 and the consequential ruling delivered on the 26th of January, 2016, having been delivered without jurisdiction, are hereby set aside.
(ii) Cost of N100,000 is hereby awarded in favour of the 2nd–5th Appellants against the Respondent.
SAIDU TANKO HUSSAINI, J.C.A.: Service of all Court processes on the adverse party is a basic and fundamental prerequisite which activates the jurisdiction of the Courts and this, the Courts cannot ignore under whatever guise.
Apart from the fact that the Courts are divested from the exercise of jurisdiction in absence of Service of Notices for hearing as having not taken place and the Court nonetheless proceed to hearing the case, the exercise as carried out by the Court was done in futility. Further to that is the issue of fair hearing or lack of it of the party affected by that decision of Court, as in this case on appeal.
I have read the leading judgment delivered by my lord, Abba Bello Mohammed, JCA and I agree with him, the reasoning and conclusion. The appeal has considerable merit and same is allowed with cost assessed in the sum of N100,000.00 in favour of the 2nd-5th Appellants and against the Respondent.
MOHAMMED DANJUMA, J.C.A.: I have had the privilege of reading in draft, the lead judgment of my learned brother ABBA BELLO MOHAMMED, JCA. I agree with the reasoning and conclusion that this appeal succeeds and is hereby allowed. I abide by all the consequential orders in the lead judgment.
Appearances:
Dr. J. O. Mbamalu – for 2nd – 5th Appellants For Appellant(s)
Oludare A. Adesanya, Esq. For Respondent(s)
