FIRST ALSTATE SECURITIES LIMITED & ANOR v. ADESOYE HOLDINGS LIMITED (2013)

FIRST ALSTATE SECURITIES LIMITED & ANOR v. ADESOYE HOLDINGS LIMITED

(2013)LCN/6231(CA)

RATIO

JURISDICTION: COMPETENCE OF A NOTICE OF APPEAL

It is a well settled fundamental principle, that a competent notice of appeal is the live-wire of an appeal. It is what animates and substains an appeal. Thus, it’s a condition precedent to the exercise of the power of an appellate court (the court of Appeal, inclusive). This trite fundamental principle has been reiterated by the Supreme Court, nay this court, in a plethora of far-reaching authorities, including – AMADI VS. OKOLI (1977) 7 SC 57; BRAWAL SHIPPING (NIG.) LTD VS. EXTRACTION & COMMODITY SERVICE LTD (2001) 2 -; OKOTIE VS. OLUGHOR (1995) 5 SCNJ.

Thus, flowing from the foregoing principle, it may be reiterated, for the avoidance of any lingering doubt, that the jurisdiction of the court is predicated squarely upon a competent and properly filed notice of appeal. And where a notice of appeal is not properly commenced or filed, as in the instant case, the court is devoid of any jurisdictional competence to entertain and determine the appeal. In the circumstance, it behoves the court to decline to adjudicate upon any issue raised in the appeal on the merits. See OLARENWAJU vs. BON LTD (1994) 8 NWLR (pt.364) 622; OLOWOKERE VS. AFRICAN NEWSPAPER (1993) 5 NWLR (pt 295) 583; ERISI vs. IDIKA (1987) 4 NWLR (Pt.66) 503; JOSIAH CORNELIUS LTD VS. EZENWA (1966) 37 LRCN 618; TUKUR vs. GOVT. OF GONGOLA STATE (1988) 1 NWLR (Pt 68) 39; IKEAGWU vs. NWANPKA (1966) 1 SCNJLR 238.

I have deemed it apt to equally reiterate the trite doctrine, that for the purposes of deciding or determining whether or not an appeal is filed within the statutory time limit (section 24 (2) of the Court of Appeal Act), what is crucial is the actual date on which the notice of appeal was filed. Thus, the date a notice of appeal is prepared or dated is not at all material. see MUHAMMED vs. KAYODE (1997) 1 NWLR (Pt.11) NWLR (Pt.530) 584.PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

FAIR HEARING: IMPLICATION OF A FAILURE TO FILE A COURT PROCESS WITHIN THE PRESCRIBED BY THE RULES OF COURT

In The Court of Appeal of Nigeria

On Friday, the 24th day of May, 2013

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Investment and Securities Tribunal, Lagos Zonal Office delivered on the 3rd day of May 2011 granting most of the claims of the Respondent.

The facts leading to the institution of this suit at the Tribunal are as follows: The Applicant on the 20th day of March 2008 lodged with the Respondent Stockbrokers a portfolio of 31,886,200 units of IPWA shares represented in Certificate No. 1887765 which shares were subsequently verified and lodged with Central Securities Clearing System (CSCS) by the Respondents on the applicant’s instructions. On the instruction of the Applicant, the Respondent sold 10,219,533 units of the shares leaving a balance of 21,666,667 units. On 15/5/08, the Applicant further mandated the Respondent to sell 8,333,333 units of the said shares. On 5/1/2009, the applicant discovered that its CSCS Account showed zero balance. The Applicant immediately wrote the Respondents seeking a correction of the anomaly. Following the refusal of the Respondents to restore the shares sold without authorization, the Applicant wrote a letter of complaint to Union Registrars Ltd who later informed the Applicant of its inability to sanction the 2nd Respondent. Following several letters written by the applicant’s solicitors to the Respondent the 2nd Respondent on 23/9/09 wrote to the Applicant admitting selling the shares but asked for time to restore the shares. The Respondent later proposed a repayment plan for the shares and a gentleman’s agreement was subsequently reached. By the terms of the agreement, the Respondent would pay to the Applicant the sum of N201,669,251.00 and also restore to it 4,333.333 units of the shares. The Respondents did not comply but later wrote a letter asking for extension of time to fulfill their obligations under the gentleman’s agreement. The Respondent still failed to honour the agreement. The Applicant’s solicitors finally lodged a complaint with the Securities and Exchange Commission (SEC). The Respondents in an effort to settle the matter made available to the Applicant’s Solicitors the title documents to its property House 1, Palm Drive at Anchorage Estate to sell at the reserved price of N50 million and to apply the proceeds to off-set the Respondents’ indebtedness to the Applicant. Due to a lien by a bank on the property, the Applicants solicitors were unable to sell it. As a result of several meetings between the Applicant’s solicitors, representatives of the Respondents and officials of SEC, it was agreed that the matter be resolved amicably. This gave rise to Terms of Settlement which shall form the decision of Administrative Proceedings Committee of SEC. A copy of the Terms of Settlement duly executed by the parties was forwarded to SEC. The suspension placed on the 1st Respondent was lifted to enable the Respondents go back to operations in order to be able to meet their obligations to the Applicant. Despite all these concessions, the Respondents failed to honour the terms of the settlement. The Applicant then commenced this suit by originating application claiming the following reliefs:

a) “the sum of N196,669,251 (one hundred and ninety six million, six hundred and sixty nine thousand, two hundred and fifty one naira only) being part of the amount admitted by the respondents as outstanding indebtedness to the applicant in accordance with the Terms of Settlement;

b) Order directing the respondents to restore immediately upon the judgment of this honourable Tribunal a total of 4,333,333 (four million, three hundred and thirty three thousand, three hundred and thirty three hundred) units of IPWA shares to the applicant’s portfolio account in accordance with the Terms of Settlement;

c) To foreclose the interest of the 1st respondents in the Dwelling House otherwise known as House 1, Palm Drive at Anchorage Estate in Amuwo Odofin Local Government council of Lagos state and ordering same forfeited to the applicant in part fulfillment of the respondent’s indebtedness to the applicant.

d) An order of garnishee to all or any bank or financial institutions whereby the respondents’ money or monetary interest (s) is/are being kept towards applying any amount standing to the credit of the respondents to the applicant.

e) N5,000.000 as general damages;

f) N2,000.000 as cost of the suit.”

By the order of the Court, the Respondents were duly served by publication in two national daily newspapers. On the adjourned date of hearing, 31/3/11, the parties were represented by their respective counsel but the Respondents had up to then not filed any response to the application. By the Rules of the Tribunal they were to file their response within 21 days. On the oral application of counsel for the Respondents, they were granted extension of time to file their response and the case was adjourned to 13/4/11. (See Pages 111-125 of the record).

At the resumed hearing on 13th April 2011, the parties were again represented by their respective counsel. The Respondents’ counsel had again failed to file a response to the application and there was no written application for further extension of time within which to file their response. Counsel again orally applied for adjournment. The oral application was opposed by Applicants’ counsel. The lower court thereupon refused the applicants’ oral application for adjournment and called on the Applicant to open its case. The Applicant called its sole witness, Mr. Oluwagbemiga Babatunde Adesoye, who testified in support of the application. The Applicant closed its case and final written address was ordered to be filed by the lower Tribunal. The matter was then adjourned to 3rd May 2011 for judgment. (See Pages 116-128 of the records).

On Friday 29th April 2011, the Respondents filed a motion for direction seeking to file their defence and written address. 2nd May 2011 was declared a public holiday in Nigeria and 3rd May 2011 was the day the matter was listed for judgment. On that day, the parties were represented by their respective counsel. The lower court observed that an application dated and filed on 29th April 2011 by the appellant was in its file and promptly delivered a ruling dismissing the application. Upon dismissing the appellants’ application for direction to file defence, the lower court delivered its judgment in favour of the respondent. (Pages 129-138 of the records)

Dissatisfied with the judgment of the Tribunal, the Respondents filed a notice of appeal containing three grounds of appeal. Out of the three grounds of appeal, the Respondents now Appellants formulated a sole issue for determination as follows:

“Whether the tribunal’s failure to hear the appellants’ application dated and filed 29th April 2011 and consider their defence and final written address was a violation of the appellants’ constitutional right to fair hearing and therefore rendered its decision dated 3rd May 2011 unconstitutional, null and void?”

The Applicant now Respondents in the appeal on their part distilled two issues for determination. They are:

(i) Whether there was a breach of fair hearing which occasioned a miscarriage of justice.

(ii) Whether appeal is the first and only remedy for the appellants having regard to Section 74(1) of the Investment and Securities Tribunal (Procedure) Rules 2003.

The appellants’ sole issue is same as the Respondent’s issue (i). The Respondents issue being more precise, I shall adopt their issues in the determination of this appeal.

At the hearing of the appeal on 4/3/13, learned counsel for the Respondent indicated that they filed a notice of preliminary objection on 16/11/11 and that the argument thereon is contained at page 7 of their Respondent’s brief. Surprisingly, the Appellants did not file a reply brief and so had no response to the preliminary objection.

PRELIMINARY OBJECTION

ARGUMENT OF RESPONDENT’S COUNSEL:

Learned counsel on the preliminary objection submitted that though the appellants filed this appeal against the Judgment of the lower court delivered on 3rd May 2011, in actual fact, the substance of the appeal is against the Ruling delivered on same date, in the appellants’ application for direction. (Page 130, lines 11 to 32 and page 131, lines 1 to 14 and pages 139 -140). Learned counsel contended that the conditions precedent to the filing of the Notice of Appeal have not been fulfilled, thus rendering the grounds of appeal incompetent. Counsel argued that by the provision of Section 24 (2)(a) of the Court of Appeal Act Cap C35 Laws of the Federation of Nigeria 2004, an appeal against an interlocutory decision must be filed within 14 days. Counsel submitted that the ruling on the application of the appellants by the lower court is an interlocutory decision, since it did not dispose of the rights of the parties. Kotun & 2 ors V. Olasewere & 2 ors (2009) 11 NMLR 702 @ 111, line 30.

Learned counsel submitted that the 14 days within which the appeal should have been filed had lapsed, the appellants ought to have sought the leave of this Court to appeal. Counsel referred to Owoniboys Technical Service Ltd v. UBN Ltd (2003) 15 NWLR (Pt.844) 545 @ 575 F-G and Kotun & 2 Ors v. Olasewere & 2 Ors (supra) @ 112, line 37 and further submitted that failure on the part of the appellants to seek leave of this Honoruable Court before incorporating grounds 1, 2 and 3, all of which relate to the Ruling of 3/5/2011, into the final Notice of Appeal rendered the appeal incompetent. Learned counsel argued that the lone issue formulated by the Appellant for determination having arisen from the incompetent grounds is also liable to be struck out. Counsel urged the Court to strike out the appeal.

RESOLUTION: PRELIMINARY OBJECTION:

It is true on a careful examination of the grounds of appeal that the substance of the appeal and indeed all the grounds of appeal relate to the ruling of the Tribunal and not the main judgment. By Section 24 (2) (a) of the Court of Appeal Act 2004, an appeal against an interlocutory decision must be filed within 14 days. The decision on the application for direction was given on 3/5/11. The notice of appeal is dated 31/5/11 and filed on 1/06/11. It was filed well after the 14 days prescribed. The Appellant may have been working on the assumption that his appeal is against the judgment of the court and could be filed within 30 days. But in Owoniboys Technical Service Ltd V. UBN LTD (2003) 15 NWLR (Pt.844) 545 @ 575 F-G the Supreme Court, per Ejiwunmi JSC, held thus:

“Now it is manifest that whether the appeal is based on grounds of law which enables the appellant to appeal as of right or the grounds are of mixed law and fact, the appeal must be filed within the time stipulated in the above provisions to ground the appeal. This means that if the appeal is against an interlocutory decision in a civil cause or matter, it must be filed within fourteen days from the date of the decision.

“At page 576 Para B, the Court held thus;

“… But that is not to say that if such appeals are to be heard with the main appeal in respect of the case, the provisions of the Constitution and the law with regard to interlocutory appeals should not be complied with.”

So notwithstanding, that the Appellant appealed against the judgment, in so far as there is also incorporated therein an appeal against an interlocutory decision if filed outside the time limit prescribed, then leave is required and ought to have been obtained. See Onwe v Oke (2001) 3 NWLR (Pt.700) 406; (2001) LPELR-2709 (SC); Ogigie v. Obiyan (1997) 10 NWLR (Pt.524) 179.

The Appellant herein failed to obtain leave to appeal out of time, all the grounds of appeal and the sole issue distilled from them having been based on the interlocutory decision and not the final judgment. There is consequently no competent appeal before the court. The preliminary objection is upheld and the appeal is liable to be struck out. Just in case I am wrong I shall proceed to consider the appeal on its merits.

ISSUE (1):

Whether there was a breach of fair hearing which occasioned a miscarriage of justice

APPELLANTS’ ARGUMENTS:

Learned Counsel on their sole issue submitted that the tribunal delivered a ruling preceding the delivery of its judgment in the matter on 3rd May 2011 even without hearing the appellants’ counsel who was present in court to canvass argument on the application and “denied” same. Counsel contended that the tribunal decided suo motu and delivered a ruling on the application thereby denying the appellants the opportunity to be heard. Counsel argued relying on the case of Stirling Civil Engineering Nig. Vs. Mr. Philip Nwosu [2008] 3 NWLR (Pt.1074) 288 at 307-308, paragraphs F-B that the position of the law is that a court of law must hear and determine all pending applications before it. Learned counsel further argued that it is also the law that a court lacks competence to grant or refuse an application which has not been argued before it. See Stirling Civil Engineering Nig. [supra] page 308. paragraph D. Counsel submitted that the failure of the tribunal to hear the appellants’ application dated 29th April 2011 before ‘denying’ same is fatal to its judgment delivered the same day. He submitted that if the tribunal had heard the appellants’ application, it would not have delivered the judgment on 3rd may 2011 as it did and it might have reached a different verdict as the appellants’ defence in the matter sought to be properly brought before the tribunal would have been considered before reaching its judgment. Counsel contended that the law is that the principles of fair hearing demand that every application ending before a court of law must be heard on its merits before being determined and any breach of this principle will nullify the proceedings in which the breach occurred. He relied on Ken Nnamani vs. Uzoamaka Gladys Nnamani & Another [1996] 3 NWLR (Pt 438) 591 @ 597-598 G-C. Adeyemi vs. State [2011] 5 NWLR (Pt.1239] 1 @ 39-40 G-B and Stirling Civil Engineering Nig. Vs. Mrs. Philip Nwosu [supra] @ 307-308 F-B.

Counsel further submitted that the refusal of the tribunal to hear the appellants counsel on the application filed on behalf of the appellants and in their defence is a serious miscarriage of justice because it amounted to a breach of the principle of fair hearing. He relied on Ndaba (Nig.] Limited vs. Union Bank of Nigeria Plc [2009] 13 NWLR (Pt 1158) 256 @ 319 A-G, 323H; Stirling Civil Engineering Nig. vs. Mr. Philip Nwosu [supra] 308 D.

Counsel submitted that the attitude of the tribunal to the said application is a direct breach of the fundamental right principles of audi alteram partem and that this rendered the proceedings and the attendant judgment null, void and of no effect whatsoever. Counsel relied on Ogundoyin vs. Adeyemi [supra] @ 421-423 B-D. Counsel urged the court to set aside the judgment of the Tribunal as it was reached without due regard to the principles of fair hearing.

RESPONDENTS ARGUMENTS:

Learned counsel for the Respondents while conceding that the law requires the court to hear and decide all applications brought before it by any party, submitted that the lower court was right to have dismissed the application for direction without arguments, as the issue in the application was not properly placed before the lower court and the court is not obliged to pronounce on it. Counsel contended that the ruling of the lower court delivered on 13th April 2011 refusing the application for adjournment, effectively foreclosed the defence and participation of the appellants in the proceedings, thus rendering the motion dated and filed on 29th April dead on arrival, as the order was subsisting and unchallenged (Page 122 line 2-3 of the record). Furthermore, counsel contended, the motion was neither fixed for hearing nor served on the respondent. The lower court had on the 13th April 2011 adjourned to 3rd May 2011 for judgment in accordance with rule 14 (5) of the Investment and Securities Tribunal (Procedure) Rules 2003.

Learned counsel submitted that the authorities of Stirling Civil Engineering Nig. V. Philip Nwosu (supra), Ken Nnamani V. Uzoamaka Nnamani & anor (supra); Adeyemi V. State (supra); Ndaba (Nig) Ltd V. Union Bank of Nig. Ltd. (supra) and Ogundoyin V. Adeyemi (supra) cited by learned counsel for the Appellants were not all in point with the case of the appellants, as the facts and circumstances are quite different. Counsel submitted that in the case of Stirling Civil Enginering Nig. V. Philip Nwosu (supra), the court did not take cognizance of a pending motion before reaching its decision. In Ken Nnamani V. Umamaka Nnamani & anr (supra), the court heard argument of counsel, but failed to deliver its ruling and rather made interim orders prejudicial to the case of one of the parties. In Ndaba (Nig) Ltd v. Union Bank of Nig. Ltd. (supra), the plaintiff’s motion to amend its claim was pending and due to be heard, when court advised parties to explore means of settling their differences. On the next adjourned date, when parties were to report on the settlement, the court heard the defendant’s preliminary objection, while ignoring the plaintiffs motion to amend its claim. It is pertinent to note that in all the cases the applications were properly before the court and ripe for hearing. Counsel submitted that the facts of Adeyemi V. State (2011) supra and Ogundoyin V. Adeyemi (2001) 13 NWLR (Pt. 730) supra, have no bearing whatsoever to the facts of this case and urged the court to disregard the cases. Counsel further submitted that a party who had ample opportunity to present its case but failed to utilize it can not be heard to complain of lack of fair hearing. Counsel relied on Bill Const. Co. Ltd. v. I & S/S.T Ltd (2007) 7 WRN 152 @ 164: IBWA Ltd v. Hotel Metropole Int’l Ltd (2010) 41 WRN 40 @ 47. Learned counsel submitted that Section 290 (1) of the Investment and Securities Act 2007 empowers the Tribunal to make rules regulating its procedure. Rule 71(1) (a) of the Investment and Securities Tribunal (Procedure) Rules 2003 provides that the Tribunal could decide an application without hearing “where no reply is received by the Secretary within the time appointed by rule 13 or 14 or any extension of time allowed by the Tribunal.” Rule 14(3) provides that “The reply shall be signed by the respondent or the respondent’s representative and shall be sent or delivered to the Secretary at the office of the Tribunal not later than 21 days after the date on which the notification of the originating application was sent to the respondent by the Secretary.”

Counsel submitted that fair hearing and fair trial are synonymous and the test for its observance is not based on technicality but on the substance of the proceedings and the objective view or opinion of a fairly-minded person who was present throughout the proceedings whether, in his opinion justice has been done to the parties in the case. He referred to Ika LGA v. Mba (2007) 19 WRN 15 @ 26: Pan Africa Int. Incorporation & 2 ors V. Shoreline Liftboats Ltd. & Anr. (2010) 47 WRN 1 @ 6; Pam & Anor v. Mohammed & anor (2008) 40 WRN 67 @ 80.

Learned counsel finally submitted that, there has been no miscarriage of justice on the part of the lower court as the appellants of their own volition elected not to defend the matter, when given ample opportunity. Counsel submitted that the appellant, by their self-induced denial, remained recalcitrant and waited for the eleventh hour to lay ambush on the lower court and the respondent and then turn around to shout lack of fair hearing. Furthermore, counsel submitted that the appellants having failed to properly place the application before the lower court, the lower court was not obliged to hear it. Counsel submitted that the Ruling of the lower court on the appellants’ motion for direction to file defence can, at best, be regarded as surplussage having no bearing to the business of the day .i.e. the delivery of the reserved Judgment. Counsel urged us to resolve the issue in favour of the Respondent.

RESOLUTION:

It is indeed trite that in the determination of his civil rights and obligations, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality. See Section 36(1) of the 1999 Constitution. Adherence to the principle of fair hearing does not however imply that the courts should throw over-board the Rules of the Court. A party who fails to obey the Rules of the Court by not filing his process within the time prescribed by the Rules or within the time as duly extended by the court and whose chances of being heard is foreclosed can not turn round to argue that he was denied a fair hearing. See Chime v. Ude (1996) 7 NWLR (Pt 461) 379. Ogundare JSC @ 418A-E: “The argument that non-notification to the appellants that an order of dismissal was to be made prior to the making of the order was an infringement of their fundamental right to fair hearing is, in my respectful view, without any substance. As was held in Oyeyipo, the appellants having failed to file their brief within time, have not satisfied the conditions necessary for the hearing of their appeal in court and were therefore not entitled to a hearing, oral or written. There could be no infringement of a right they have not earned.”

Closely linked to this principle of fair hearing, is the principle that all applications properly brought before the court must be heard. Brawal Shipping (Nigeria) Ltd v Onwadike Co Ltd (2000) 11 NWLR (Pt 678) 387; Nnamani v. Nnamani (1996) 3 NWLR (Pt 438) 591 @ 597.

The emphasis is on the word ‘properly’. In Monkom & 2 Ors v. Odili (2009) 11 NMLR 213 @ 227, para 46 – 47 Omokri, JCA observed:

“Learned counsel for the appellant argued that the court has a mandatory duty to pronounce on all issues placed before it. That may be so. There is however a little qualification to the submission. In Brawal Shipping Ltd. V Onwadike Co. Ltd (supra) Uwaifo JSC stated that: ‘It is no longer in doubt that this court demands of and admonishes the lower courts to pronounce as a general rule on all issues properly placed before them for determination…’ The emphasis is on all issues PROPERLY PLACED before the court for determination, apart from the issue of fair hearing. It dos not mean that failure to make pronouncement on any matter amount to lack of fair hearing especially when the issue like the one the appellants are canvassing, was not properly placed before the trial court”.

The question therefore is whether the application in the instant case was properly brought before the Tribunal? The Appellants did not file their response within the 21 days allowed by the Rules of the Tribunal; (Rule 14(3) of the Investment & Securities Tribunal (Procedure) Rules 2003). They were given an extension of seven days within which to file. They still failed to file by the 13th day of April 2011 to which hearing was adjourned. On that day they came to Court without filing any written application and again orally applied for further extension which was vehemently opposed by the Respondents. The Tribunal ruled in favour of the Respondents refusing any further extension of time, thereby foreclosing the right of the appellants to defend the application. The Respondent called their witness, after which the Tribunal ordered written addresses and adjourned to 3/5/11 for judgment. The Appellant could have immediately thereafter, taken steps under Rule 14(5) to apply for extension of time or under Rule 74 for a review of the Tribunal’s decision to foreclose them, notwithstanding that the only reason for review under the subsection is that the Respondent did not receive notice of the originating application. No doubt it could be widened at the discretion of the Tribunal. The Appellants took no such step but waited until Friday, the 29th day of April, 16 days after the Tribunal had ordered written addresses and reserved judgment and a day before judgment was to be delivered, the 2nd of May being a public holiday. On that 29th April, the appellants filed a motion for direction seeking to file their defence and written address. There was no time to serve the Respondents with the motion and the motion was clearly not ripe for hearing on that 3rd of May when the judgment was slated for delivery and there was no application to arrest the judgment. The Appellant’ application was in the court file. The Tribunal was not obliged to comment on it, not being ripe for hearing. The Tribunal non-the-less dealt fully with it at pages 130-131 of the record in the following words:

“This case was adjourned to today for the judgment of the Tribunal. However before I go the judgment, I have observed that there was an application from the Respondents which was filed 29th of April 2011. Brought pursuant to Rule 14(5) (a), 34 and 35 of the Investment and Securities Tribunal (Procedure) Rules 2003 and the inherent jurisdiction of the Honourable Tribunal, the Respondents/applicants are praying this Tribunal for the following: (1) An Order for extension of time within which the Respondents/Applicants can file their defence, (2) An Order directing the Registrar of this Tribunal to accept the defence of the Respondents as part of the processes of this Tribunal. (3) An Order deeming the already filed and served defence of the Respondents as properly filed and served. (4) And for such further direction(s) as this Honourable Tribunal may deem fit to make in the circumstances of this case and in the interest of justice. The application is supported by a seven paragraph affidavit sworn to on April 29, 2011. It is noteworthy that this suit which the Respondents/Applicants application seek enlargement of time to enter a defence to, was adjourned for judgment today May 3, 2017. At the resumed hearing of this suit on April 13, 2011, the Respondents/Applicants expressed their intention to make an application for enlargement of time to file their Reply to the originating Application. However considering an earlier adjournment granted the Respondents/Applicants on March 31, 2011 to file its reply within 7 days and for a more important reason that no application was before the Honourable Tribunal for enlargement of time on April 13, 2011, this Tribunal directed the Applicant to proceed with its case.’ The 2nd Respondent/Applicant averred that his sickness occasioned the Respondents/Applicants inability to file their defence; however they failed woefully to exhibit any document corroborating this averment. This Tribunal is therefore not persuaded by this argument. They filed a reply to the originating application as well as the Respondents’ written address, which though filed are not annexed to the Respondents/Applicants affidavit. The processes were filed on Friday, April 29th, 2011, the last working day to the adjourned date of the Judgment i.e. May 3, 2011. This no doubt betrays a lack of diligent prosecution by the Respondents/Applicants of his defence a trend that has characterized their conduct in this suit. Moreover, notwithstanding the Respondents/Applicants’ application for direction, we are not aware of any application arresting the judgment of this Honourable Tribunal adjourned for today. Consequently, we are not constrained to arrest the scheduled judgment for May 3, 2011, the Respondents/Applicants’ application for direction dated April 29, 2011 is hereby denied.”

Just like a drowning man clutching at any straw to save himself, the Appellants contended that the failure of the tribunal to hear the appellant’s application before ‘denying’ same is fatal to its judgment delivered same day. No doubt the Tribunal did not call on Counsel to address it, because of its conclusion that the application was not ripe for hearing and was therefore not properly placed before the Tribunal. I think it is important to point out that Honourable Judges ought to be on the watch out for litigants such as the Appellants in the instant case whose cases are hopeless but who are merely seeking for technical loop holes to attack the judgment which they know is bound to go against them. That is the only way I can rationalize the conduct of the Appellants during the hearing at the Tribunal. They had ample time to put in their defence but they deliberately refused to do so until the very last minute. The Tribunal should have quietly allowed the Appellants to move their motion and at the end deliver the same ruling and get on with its judgment. There would then be no basis for any contention of denial of fair hearing. Regarding the abuse of the fair hearing principle, Niki Tobi JSC had this to say in Adebayo v Attorney General of Ogun State (2008) 7 NWLR (Pt 1085) 201 @ 205 – 206:

“Learned counsel for the Appellant roped in the fair hearing principle. I have seen in recent times that parties who have bad cases embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse party and the court, with a view to moving the court away from the live issues in litigation. They make so much weather and sing the familiar song that the constitutional provision is violated or contravened. They do not stop there; they rake the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the constitution is the machinery or locomotive of Justice not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and fore the court to apply it b his advantage. On the contrary, it is a formidable and fundamental provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case, Let litigants who have nothing useful to advocate in favour of their cases leave the fair hearing constitutional provision alone because it is not available to them just for the asking.”

There is no better description for the conduct of learned counsel for the appellants in the brazen manner he attempted to introduce the principle of fair hearing by his blatant refusal to file their response until the eleventh hour knowing fully well that they had no answer to the case of the Respondent in order to create the opening for the defence of lack of fair hearing. The courts are no fools and cannot be that easily deceived. Learned counsel did not even bother to get a medical report to support the alleged ill health of the 2nd Appellant that prevented them from putting in their defence timeously. The days of such technical application of the law are gone and gone forever. The justice of the case must always prevail.

In Bill Const Co. Ltd v. I & S/S.T Ltd (2007) 7 WRN 152 @ 164, lines 10-25. Onnoghen JSC, held thus:

“it is settled law that where a party is given ample opportunity to present his case within the confines of the law but he chooses not to utitize same, he cannot later be heard to complain that his right to fair hearing has thereby been breached. What the court is enjoined by the provisions of section 33 of the 1999 Constitution to do is to create a conducive atmosphere for the parties to exercise their right to fair hearing, by holding the scales of justice fairly but firmly without fear or favour, affection or ill will. Having provided the required atmosphere the duty on the court stops there. It becomes the duty or choice of the party seeking to enforce his civil rights and obligations to utilize the opportunity so created. He cannot be compelled to do so. Where he decides to present his case in an acceptable mode and as required by the rules and substantive, he would be heard. On the other hand, where he chooses not to present his case he cannot later be heard to complain that he was not heard, as in the instant case.”

In the above cited case, an arbitral award was not challenged until the time allowed by the Arbitration and Conciliation Act had long expired. The SC upheld the decision of the trial court refusing an adjournment to file a counter-affidavit to challenge the award, on the ground that the refusal amounted to no breach of his right to fair hearing. Similarly, the decision of the Tribunal on 13/4/11 refusing the Appellant further adjournment to file his defence after the expiration of 57 days without filing same is fair. The Tribunal was under no obligation to hear the Appellant’s application for direction. Therefore its’ ruling thereon was mere surplussage and cannot be used to undermine the judgment as there was no miscarriage of justice. The decisions referred to by learned counsel in his brief are not apposite. Stirling Civil Engineering Nig. v. Nwosu was a claim on the undefended list and the appellants applications for leave to file and serve its memorandum of appearance out of time and for an order setting aside the writ of summons on grounds of certain defects therein were properly before the trial court. The court was therefore wrong not to hear those applications before entering judgment for the Respondent on the undefended list. Again in Ken Nnamani vs. Uzoamaka Gladys Nnamani & Another the application for an order of maintenance etc was properly before the court, the trial Judge after hearing arguments declared that time would not allow him go into the arguments as to the technical competence of the application and yet proceeded to make an award. The appeal was allowed on the ground that the must was bound to pronounce on the competence of the application having taken arguments thereon.

As learned counsel for the Respondent very aptly put it, ample opportunity was given to the appellants to file their response, they elected not to defend the matter and waited till the last minute to lay ambush on the Tribunal and the Respondent and then turn round to shout lack of fair hearing. They have woefully failed in their grand design as I have no hesitation whatever in resolving this issue in favour of the Respondent and against the Appellants.

ISSUE NO. 2

Whether appeal is the first and only remedy for the appellants having regard to Section 74(1) of the Investment and Securities Tribunal (Procedure) Rules 2003.

The appellant made no submissions on this issue as it was the second issue formulated by the Respondent and the Appellant filed no reply brief.

RESPONDENTS ARGUMENTS:

Learned Counsel for the Respondent submitted that assuming, without conceding, that the order refusing the application for direction and entering judgment was wrong or prejudicial to the appellants, that their remedy does not lie in an appeal but in an application to have it set aside under Section 74 (1) of the Investment and Securities Tribunal (Procedure) Rules 2003.

RESOLUTION:

Section 74 (1) of the Investment and Securities Tribunal (Procedure) Rules 2003 provides:

74 (1) if, on the application of a party or on its own initiative, the Tribunal is satisfied that-

(a) its decision was wrong because of an error on the part of the Tribunal or its staff; or

(b) a party, who was entitled to be heard at a hearing but failed to be present or represented, had a good reason for failing to be present or represented; or

(d) New evidence to which the decision relates has become available since the conclusion of the proceedings and its existence could not reasonably have been known or foreseen before then; or

(e) otherwise the interest of justice require, the Tribunal may review and set aside or vary the relevant decision.

(2) An application for the purpose of paragraph (1) of this Rule-

(a) may be made immediately following the decision at the hearing;

(b) If not so made, shall be made to the Secretary at any time not Later than 14 days after the date on which;

(i) the decision was sent to the parties, or

(ii) the applicant became aware or deemed to be aware of the new evidence referred to in sub-paragraphs (1) (c) and (d) of this rule; and

It does appear from the above provision that the Appellant ought in the first instance to have applied to the Tribunal to review its decision. But there is nothing in the provision that precludes a party from appealing to the Court of Appeal instead. Indeed Section 78(1) of the Investment and Securities Tribunal (Procedure) Rules 2003 provides that any person dissatisfied with a decision of the Tribunal may, pursuant to section 289 (1) of the Investment and Securities Act appeal against such decision on points of law to the court of Appeal upon giving notice in writing to the Secretary of the Tribunal within 30 days after the date on which such decision was given. It is clear then that such appeal is confined to points of law only. The direct appeal to the Court of appeal is consequently in order despite the provision of Section 74 of the Rules.

With the resolution of issue one in favour of the Respondents, this appeal lacks merit and ought to be dismissed. But because the preliminary objection succeeded and was upheld the appeal is hereby struck out with costs assessed at N50,000.00 in favour of the Respondent.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: In the instant appeal, the judgment purportedly appealed against is contained most specifically at pages 131 (line 16) 138 (line 27) of the Record of Appeal. However it’s rather obvious, that the Appellants’ notice of appeal is against the ruling of the lower court which was delivered on May 3, 2011, to the conclusive effect, thus:

Consequently we are not constrained to arrest the scheduled judgment for May 3, 2011, the Respondents/Applicants, application for direction dated April 29, 2011 is hereby denied. We now go to the judgment. See pages 130 – 131 of the Record.

Undoubtedly, the Appellants’ notice of appeal was filed on June 1, 2011, albeit dated May 1, 2011. And that was 29 days after the vexed ruling was delivered by the lower court (on 03/5/11).

Instructively, by virtue of the well set out provision of section 24(2) (a) of the Court of Appeal Act, CAP. C35 Laws of the Federation of Nigeria 2004, the instant appeal, being an interlocutory appeal, ought to have been filed in the lower court within the period of 14 days from the date of delivery of the ruling in question. Most regrettably, however, that was not done in the instant case. From 03/5/11, when the vexed ruling was delivered, the 14 days accorded the Appellants to file their notice of appeal must have expired on 17/5/11. Thus, by filing the notice of appeal on 01/6/11, the Appellants must have been out of time for a total number of 15 days. The provision of subsection (2) (a) of section 24 of the court of Appeal Act, 2004 (supra) is to the following effect:

“(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are –

(a) in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision…

Thus, there’s no gainsaying the fact that the notice of appeal filed by the Appellants on 03/5/11, out of the statutory time limit of 14 days, without seeking and obtaining the leave of this court, is grossly devoid of any competence. And by implication of which, it’s liable to be struck out in limine. Accordingly, the court itself is devoid of the fundamental jurisdictional competence to entertain and determine any issue raised in the appeal on the merits.

In the instant case, it’s rather obvious that the Appellant has failed, for reasons best known thereto, to file a reply brief though served with the notice of preliminary objection, duly incorporated in the Respondents’ brief. Indeed, it’s axiomatic, that a preliminary objection, by the very nature and purport thereof, is an objection to the effect that if upheld –

Would ultimately render further proceedings, or determination of the appeal before the court impossible or unnecessary. Where a preliminary objection to the competence of an appeal is argued and successfully upheld by the court the said appeal is liable to be struck out, in limine.

See BRITISH AIRWAYS vs. ATOYEBI (2010) 14 NWLR (Pt.1214) 561, @ 586 paragraph H, 586 paragraph A; OFORKIRE vs. MADUIKE (2003) 16 WRN 1; (2003) 5 NWLR (Pt.812) 166; AREWA ILES PLC vs. ABDULLAHI & BROTHERS MUSAWA BROTHERS LTD (1998) 6 NWLR (pt.554) 508.

Hence, in the light of the above postulation, I have no hesitation in concurring with the reasoning and conclusion reached in the judgment just delivered by my learned brother, Iyizoba, JCA to the effect that there is “no competent appeal before the court”. Consequently, the preliminary objection succeeds, and it’s hereby equally upheld by me. The appeal is accordingly hereby struck out, in accordance with order 5 Rule 6 of the court of Appeal Rules, 2011.

I abide by the consequential order of costs of N50,000.00 awarded in favour of the Respondent.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: The motion on notice for direction filed by the appellants on 29-04-2011 seeking to file their defence and written address was not fixed for hearing. However, the Tribunal below looked at it but found no substance in it. From the circumstances of the case ably captured by the lead judgment of my learned brother, Iyizoba J.C.A., the Tribunal below afforded the appellants the opportunity to put across their case which was not reasonably utilised by the appellants.

Consequently, I am unable to agree with the appellants that they were denied fair hearing/trial by the Tribunal below, See Newswatch Publications v. Atta (2006) 12 NWLR (pt.993) 144 at 171 thus –

“It is the duty of the court to create the atmosphere or environment for a fair hearing of a case but it is not the duty of the court to make sure that a party takes advantage of the atmosphere or environment by involving himself in the fair hearing of the case. A party who refuses or fails to take advantage of the fair hearing process created by the court cannot turn around to accuse the court of denying him fair hearing. That is not fair to the court and counsel must not instigate his client to accuse the court of denying him fair hearing.

A trial Judge can indulge a party in the judicial process for sometime but not for all times. A trial Judge has the right to withdraw his indulgence at the point the fair hearing principle will be compromised, compounded or will not really be fair as if affects the opposing party. At that stage, the trial Judge will, and rightly too for that matter, retrace his steps of indulgence and follow the path of fair hearing as it affects the opposing party, who equally yearns for it in the judicial process. At that stage, the party who is not up and doing to take advantage of the fair hearing principle put at his door steps by the trial Judge, cannot complain that he was denied fair hearing. Such is the situation I see in this appeal.

The fair hearing principle formerly entrenched in section 33 of the 1979 Constitution, and now section 36 of the 1999 Constitution, is not for the weakling, the slumberer, the indolent or the lazy litigant, but it is for the party who is alive and kicking in the judicial process by taking advantage of the principle at the appropriate time. The principle is not available to a party who sets a trap in the litigation process against the court and accuse the court of assumed wrong doing even when such so-called wrong doing is, as a matter of fact, propelled or instigated by the party, through his counsel.

For the reason given above and for the more elaborate reasons contained in the lead judgment, I too find no merit in the appeal and would have dismissed it, save for the fact that it was filed out of time without an order for extension of time by the court; therefore the preliminary objection to it on that ground succeeds and the appeal is hereby struck out for being incompetent with N50,000.00 costs to the respondent.

Appearances

A. Afadameh Esq.For Appellant

AND

K. G. Raji Esq., with T. H. Kareem Esq.For Respondent