HON. JUDE ISE IDEHEN & ANOR V. HON. EDO OMOROGIEVA ROLAND & ANOR
(2012)LCN/5739(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of December, 2012
CA/B/244/2011
RATIO
COURT: REQUIREMENT OF A COURT RAISING AN ISSUE SUO MOTU
I have to agree with Mr. Aghimien SAN and the other Respondents’ counsel that it is elementary and trite law that when a trial judge raises an issue suo motu in the course of proceedings before him, he should invite all the counsel in the matter to address him on the issue before taking any decision in respect of same. PER TUNDE OYEBANJI AWOTOYE, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
1. HON. JUDE ISE IDEHEN
2. ACTION CONGRESS OF NIGERIA Appellant(s)
AND
1. HON. EDO OMOROGIEVA ROLAND
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, (Delivering the Leading Judgment): This is an appeal against the ruling of Hon. Justice A. A. Okeke of the Federal High Court sitting in Benin delivered on 26/7/2011. The facts that led to this appeal are as follows:
On the 21st April, 2011, the 1st respondent as the Plaintiff at the trial court commenced this suit by filing a Writ of summons, Statement of claim AND Written Statement on Oath without accompanying same with the documents he intends to rely upon and the List of his witnesses.
On the 20th May, 2011, the Appellants as the 1st and 3rd Defendants filed their Memorandum of Appearance, Statement of Defence and a Notice of Preliminary Objection to the suit.
On the 28th of June, 2011, the matter came up for the first time before the trial court for mention and having been informed of the Appellants’ Notice of preliminary objection filed on the 20th May, 2011, the trial court adjourned the matter to 26th of July, 2011 for hearing of same and further ordered that hearing notice be issued against the 2nd Respondent who is also the 2nd Defendant at the trial court and who was not in court nor represented.
On the 26th July, 2011, however the court decided not to take the Appellants’ Notice of Preliminary objection filed on the 20th May, 2011 but adjourned the matter to 25th October, 2011 for the hearing of the substantive suit.
Being dissatisfied with the said decision, the Appellants appealed to this Honourable court, by filing a Notice of Appeal dated 3rd August, 2011 on the same date.
The Appellants identified two issues for determination in the brief filed on 20/9/11 while the Respondents also identified two similar issues. The issues can be crystallized into the question whether the learned trial judge was right in raising suo motu and deciding without first giving counsel on both sides opportunity to be heard, that the Appellants’ notice of preliminary objection challenging the jurisdiction of the court to entertain the suit would be considered at the conclusion of the substantive suit. The Appellants’ counsel Ricky Tarfa SAN and Mr. Bamidele argued that the trial court breached the Appellants’ right of fair hearing on 26/7/11 when it suo motu decided the issue of priority of hearing between the objection and the substantive suit without affording the parties opportunity to address the court on the issue. He cited LEADERS & CO. LTD V. BAMAIYI (2010) 18 NWLR Pt. 1225 Pg 329 at 338, ACCESS BANK PLC V. U.L.O. CONSULT LTD. (2009) 12 NWLR Pt. 1155 Pg. 534, FAWEHINMI CONSTRUCTION CO. V. O. A. U. (1998) 5 NWLR Pt 553 Pg. 171.
The Respondents’ Counsel Mr. J. O. Aghimien SAN and Mr. P.I. Oiwoh, Mr. Asiriuwa in the best tradition of the bar conceded the appeal and urged this court to order the trial judge to hear the Appellants’ preliminary objection first as a matter of urgency before proceeding to the hearing of the substantive case.
I have to agree with Mr. Aghimien SAN and the other Respondents’ counsel that it is elementary and trite law that when a trial judge raises an issue suo motu in the course of proceedings before him, he should invite all the counsel in the matter to address him on the issue before taking any decision in respect of same. In the instant case, from the printed record of proceeding of that day, none of the counsel to the parties was invited or given the opportunity to address the court before deciding to consider the Notice of preliminary objection at the conclusion of the hearing of the substantive case.
There is no doubt that the learned trial court misdirected itself in law in not hearing the counsel on both sides before making the decision to hear the substantive suit along with the preliminary objection in the circumstances of this case. What I am saying here is that the decision itself may be the right one depending on the nature and content of the objection raised. What is wrong and smacks of high handedness and disregard for the rules of proper administration of justice is the error of not seeking the opinion of the parties before making the decision to hear the preliminary objection along with the substantive case. In FAWHINMI V. O. A. U. Supra, the Supreme Court frowned at such practice in such terms –
“In the trial court, where parties appear and more especially with their counsel present, their views must be recorded at every stage on relevant matters like issue of adjournment or costs or non suit. Where a trial judge, without anything on the record supporting it, makes an order and that order is challenged as incompetent because the parties never addressed on it, in my view, that order must be set aside; it seems the trial court was rushing the case and I believe that prompted the Court of Appeal to use the word “extracted”, for there is no reason why immediately the ruling was read, counsel were not asked any more questions.”
In the circumstances, this appeal succeeds. The decision of the trial court made on 26th July 2011 in Suit No. FHC/B/CS/82/2011 is hereby set aside. It is hereby directed that the suit be sent back to the trial court for the preliminary objection to be heard first. Appeal allowed. No order as to costs.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I was privileged to read the draft of the Judgment of my learned brother OGUNWUMIJU JCA. I am in full agreement with the reasoning and conclusion therein.
The preliminary objection has to do with lack of jurisdiction. This kind of objection cannot be swept under the carpet. In fact where the jurisdiction of a court is challenged the court should expeditiously attend to it. See AMADI V. NNPC (2000) 6 SC (pt. 1) 66; GALADIMA V. TAMJAI (2000) 6 SC (Pt.1) 196 at 207; FMBN V. UWADIALE (2004) 10 NWLR (Pt. 882) 626.
It needs to be further stated that failure of a Judge to determine an application one way or the other tantamount to a deliberate refusal of the application and indeed a breach of the applicant’s constitutional right of fair hearing. See IKEAZOR V. IKEAZOR (1994) 5 NWLR (Pt. 346) 609 at 622 – 623.
It is for the above reason and the fuller reasons adduced in the lead judgment that I also allow this appeal. I abide by the consequential orders including costs made in the lead Judgment.
JAMES SHEHU ABIRIYI, J.C.A.: It is common ground between both parties that the learned trial Judge should have heard the notice of preliminary objection which is on the jurisdiction of the Court instead of ruling that the preliminary objection would be taken at the conclusion of the trial.
I had the privilege of reading before now the draft of the lead judgment of my learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA, just delivered. I agree entirely with him that this appeal be allowed. I too allow it and abide by the consequential orders made in the lead judgment.
Appearances
Rickey M. Tarfa, SAN with M. Bamidele, EsqFor Appellant
AND
L.O. Aghimien SAN, P.I. Oiqog Esq, Emmanuel Asiriuwa EsqFor Respondent
