VIRGIN NIGERIA AIRWAYS LIMITED v. JOHN ROIJIEN
(2013)LCN/6597(CA)
In The Court of Appeal of Nigeria
On Thursday, the 5th day of December, 2013
CA/L/614/2011
RATIO
JURISDICTION: WHETHER NON-COMPLIANCE WITH THE RULES OF PROCEDURE MAY BE RAISED ON APPEAL
Obviously from the above exchange, the Appellant’s so called oral response is nothing more than an objection to the hearing by the Court of the questions filed as Special Case. The Appellant submitted that the questions are not purely issues of law but that there are facts in dispute which should not be treated as part of Special Case for the opinion of the court. The Appellant also pointed out that the Special Case was brought under Order 28 (2) whereas the Judge did not make any Order. These points raised by the Appellant in the Court below are clearly points of objection to the hearing of the Special Case, therefore the allegation of the Respondent’s Counsel that the Appellant did not object to the appropriateness of the procedure adopted by the Court below is not correct. The objection was not raised for the first time on appeal. The Appellant raised the objection in the Court below. The Trial Judge also erred by treating these points of objection as the Appellant’s oral argument in response to the Special Case filed by the Respondent. Consequently Respondent’s argument that the Appellant is deemed to have waived the right to any procedural challenge to the validity of the Special Case; and that . is without factual basis. Failure to fulfill a condition precedent is so fundamental to a case that it cannot be dismissed as a mere issue of technicality. The Supreme Court made this point Per Aderemi, JSC in Akpaji v. Udemba (2009) 6 NWLR (Pt. 1138) 545 @ 575-576 E-A:-
“It is true that all Courts must strive to do substantial justice in all cases before them; they must jettison technicalities and not allow same to stand in their way to dispensing justice. Section 16 of the Court of Appeal Act supra and Section 22 of the Supreme Court Act, Cap 424, Laws of the Federation of Nigeria 1990 empower the two Appellate Courts to do substantial justice in all the matters before them. But if the statute says that there will be no jurisdiction to entertain a Claim or a Counter claim, as in the instant case, until the filing fee is paid, until that event-the payment of filing fee occurred; the trial court would have no jurisdiction to entertain it. The condition precedent must not only be fulfilled, it must be seen to be properly fulfilled. That is the righteousness of the matter”.
In like manner, unless the parties concur to file a Special Case or the Trial Court orders the parties to address it on such points of Law, the Trial Court has no jurisdiction to entertain such questions under Order 28 of the High Court (Civil Procedure) Rules 2004. See the case of Drexel Energy & Natural Resources & Ors. v. International Bank Ltd. & Ors (2008) 18 NWLR (Pt. 1119) @ 388 @ 431 D-E where the Supreme Court held that
“where a pre-condition for initiating a legal process is laid down, any suit instituted in contravention of the pre-condition provision is incompetent and a court lacks jurisdiction to entertain the same.”
The Apex court went further to hold in the above case that where as in the instant case, there is a fundamental failure to comply with a mandatory requirement of a statute; the issue is not treated as one of irregularity. The failure renders the proceeding a nullity. PER CHINWE EUGENE IYIZOBA, J.C.A.
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
CHINWE EUGENE IYIZOBA Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
VIRGIN NIGERIA AIRWAYS LIMITED – Appellant(s)
AND
JOHN ROIJIEN – Respondent(s)
CHINWE EUGENE IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of Idowu J of the High Court of Lagos State in Suit No ID/1904/2009 delivered on the 12th day of May 2011. By a Writ of Summons dated 4th day of November 2009, the Respondent who was the Chief Finance Officer of the Appellant and the Claimant in the court below sued the Appellant his Former Employer as Defendant claiming the following reliefs:-
(a) The sum of Euro 120,325.00 being the outstanding benefits due:
(b) Interest on the sum of Euro 120,325.00 at the rate of 18% per annum from December 28, 2008 to June 20, 2009;
(c) Interest in the sum of Euro 120,325.00 at the rate of 18% per annum from August 4, until judgment;
(d) N5,000,000 being the cost of this action including Solicitor’s fee.
The background facts of this case are that in the course of a meeting of the Board of Directors of the Appellant on 26th November 2008, it came to light that the Respondent had obtained a loan of $15,000,000.00 from Guarantee Trust Bank Plc (GTB) without the express authority of the said Board of Directors and in breach of the terms of an All Assets Debenture between the Appellant and the United Bank for Africa Plc (UBA), who was the Appellant’s primary banker. In the course of discussions at the said Board of Directors Meeting, the Respondent accepted full responsibility for the loan from GTB and offered to resign if his resignation would save the Appellant’s relationship with UBA. The Board accepted the Respondent’s offer to resign in order to placate their primary Banker, UBA. The Respondent’s case is that after his resignation from the Appellant’s employment, he entered into a Separation Agreement with the Appellant which set out in detail the terminal benefits due to him in consequence of his resignation. The Appellants subsequently paid him some of the amounts agreed upon under the Separation Agreement but defaulted in liquidating the balance, hence the institution of the suit and the reliefs claimed as set out above.
The Appellant filed a Statement of Defence and Counter claim on 18th May 2010 in which it averred that the terms of its contract of employment with the Respondent were embodied in the Respondent’s letter of employment, a Service Agreement and the Appellant’s Employee Handbook. The Appellant claimed that the Service Agreement provided that if the Respondent ceased to be a Director of the Appellant by reason of his resignation, his employment shall automatically terminate and that he shall have no claims under the agreement or otherwise in respect of such termination. The Appellant further averred that it’s then Managing Director was not expressly or impliedly authorized to enter into the purported Separation Agreement and that neither the Appellant nor its Board of Directors authorized or ratified the same.
The Respondent filed a Reply and Defence to Counter Claim on 2nd June, 2010. At the close of pleadings, the process of pre-trial conferences under the High Court of Lagos State (Civil Procedure) Rules 2004 commenced. On 7th February 2011, the Respondent’s Counsel informed the Court that she would state a case pursuant to Order 28 rules 1 & 3 of the High Court of Lagos State (Civil Procedure) Rules 2004 with the consent of the Defendant. The Court thereafter adjourned “for the issues for Determination to be stated”. On 24th February 2011, Respondent’s Counsel filed a Special Case for the opinion of the Court pursuant to Order 28 rule 2 of the High Court of Lagos State (Civil Procedure) Rules 2004 as follows:-
i. Whether Mr. Conrad Clifford as Managing Director and Chief Executive Officer of the Defendant had any implied authority to enter into binding agreements on behalf of the Defendant?
ii. Whether the Separation Agreement dated 04 December 2008 is binding on the Defendant?
The Respondent further sought the following reliefs in his Special Case:-
(a) The sum of Euro 120,325.00 being the outstanding benefits due:
(b) Interest on the sum of Euro 120,325.00 at the rate of 18% per annum from December 28, 2008 to June 20, 2009;
(c) Interest on the sum of Euro 120,325.00 at the rate of 18% per annum from August 4, 2009 judgment.
(d) N5,000,000 being the cost of this action including Solicitor’s fee.
The Appellant did not file any response to the Respondent’s special case. On 21st March 2008, the Court heard arguments on the Special Case and on 12th May 2011 ruled in favour of the Respondent and granted all the reliefs sought by the Respondent. The Appellant, dissatisfied with the Ruling of the Trial Judge filed this appeal by Notice of Appeal containing 6 grounds, out of which Learned Counsel for the Appellant distilled 5 Issues for determination as follows:-
1. Whether the Learned Trial Judge was right to enter final judgment pursuant to a Special Case under Order 28 rule 2 of the High Court of Lagos State (Civil Procedure) Rules 2004 when the matter had not gone to trial.
2. Whether there was evidence before the Learned Trial Judge to justify the award in the sum of Euro 120,325.00 as judgment made in the Respondent’s favour.
3. Whether the Appellant was given fair hearing in the proceedings.
4. Whether the award of interest on the judgment sum was made in accordance with the law.
5. Whether there was pleading and proof of Solicitors fees awarded in this case.
The Respondent on their part identified the following two issues for determination:-
1. Was the Lower Court justified in answering the questions stated for Special case under Order 28 of the High Court of Lagos State (Civil Procedure) Rules 2004 in favour of the Respondent and further granting the Respondent’s Reliefs as per the Special case?
2. Was the Lower Court right in awarding costs in favour of the Respondent?
I shall determine this appeal under the following 3 issues which I believe adequately capture the essence of this appeal:-
1. Whether the Lower Court had jurisdiction to entertain the questions stated by the Respondent as Special case for the opinion of the Court pursuant to Order 28 of the High Court of Lagos State (Civil procedure) Rules 2004.
2. Whether the Lower Court was right in granting the reliefs sought by the Respondent in his Special Case thereby entering final judgment in the matter at the interlocutory stage of the proceedings.
3. Whether the Appellant’s constitutional right to a fair trial was denied.
APPELLANT’S ARGUMENT
On Issue 1, the Appellant’s Counsel submitted that the Learned Trial Judge misconceived the provision of Order 28 of the High Court of Lagos State (Civil Procedure) Rules 2004 under which the Respondent brought his Special Case. Counsel submitted that for Order 28 Rule 1 of the said High Court Rules to apply, parties have to concur in stating the Special Case for the opinion of the Court. Further, that pursuant to Order 28 Rule 3, evidence of the said concurrence by the parties should be shown by the signatures of the parties or their Legal Practitioners on the document stating the Special Case. Counsel submitted that the provisions of Order 28 Rules 1 & 3 are not applicable to this case as the consent of the parties is a condition precedent for its applicability and the Appellant did not give its consent. Counsel submitted further that on the 7th of February 2011, the Respondent’s Counsel informed the Court that she proposed to state a Special Case under Order 28 Rules 1 & 3 of the High Court of Lagos State (Civil Procedure) Rules 2004, but that having failed to obtain the Appellant’s consent, Respondent’s Counsel filed the Claimant’s Special Case pursuant to Order 28 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules 2004. It is the submission of Counsel that Order 28 Rule 2 under which the Respondent filed his Special Case is also inapplicable as that sub-rule gives the
Court power to raise a question of law suo motu or direct them to be raised at the trial, provided that Counsel is given opportunity to address the Court on the point of law. Order 28 Rule 2; Counsel argued is therefore not the applicable rule where Counsel initiates the Special Case as in the instant case. Learned Counsel submitted that on the 21st of March 2011, the Respondent’s counsel informed the Court that the Respondent had filed a Special Case under Order 28 Rules 1 & 3, creating the impression that Appellant was obliged to file a response. When the Appellant’s Counsel drew the attention of the Court to the fact that the Special Case was brought under Order 28 Rule 2, the Court took the view that the Appellant ought to have filed a response. Counsel further contended that the general rule governing interpretation of statutes is that where the language of the statute is clear and unambiguous, the Court should give the words their literal meaning. On this point Counsel referred the Court to the case of Egbe v. Alhaji & Ors (1990) 1 NWLR (Pt. 128) 546 and submitted that the words of Order 28 of the High Court are clear and therefore should be given their literal meaning.
On Issue two, Appellant’s Counsel submitted that assuming that the Respondent’s Special Case was properly brought under Order 28 of the High Court Rules, the said Rule required the Trial Judge only to give its Opinion on the question of Law and not to give final judgment on the merit of the case without proof by positive evidence of matters which are required to be proved by law. Counsel cited the case of Mberekpe v. Adikes (1962) ANLR 348, where the Federal Supreme Court held that in a case stated, the Court is restricted to declaring its opinion on the point of law involved and cannot make a consequential order and that any such order made by the Court was made without jurisdiction and therefore void. Counsel submitted that the language of Order 28 when read as a whole infers that a request for Special Case revolves around a question of law and that where the dispute raises conflicting facts in the pleading, the parties are obliged to prove their case at trial though they have obtained the Court’s opinion on the disputed question of law. Learned Counsel further argued that the Court acted without jurisdiction when it proceeded to determine the substantive claim and grant all the reliefs sought at the interlocutory stage. Citing the cases of United Cement Company of Nigeria v. Dangote Industries Ltd. (2006) 6 NWLR (Pt. 980) 616 and Orji v. Zaria Industries Ltd (1992) 1 NWLR (Pt. 216) 124, Counsel submitted that the law is that a Court must not determine or delve into the substantive suit at the interlocutory stage of the proceedings.
Counsel submitted further that the Appellant joined issues with the Respondent on the validity and legality of the purported Separation Agreement and therefore it was necessary for evidence to be led to prove the respective positions of each party. Especially as the civil liability of a Company under Section 65 of the Companies and Allied Matters Act, 1990 is qualified by the proviso in that section. Section 65 of the Companies and Allied Matters Act Cap C 20 LFN provides as follows:
“Any act of the members in general meeting, the board of directors, or of a managing director while carrying on in the usual way the business of the company shall be treated as the act of the company itself and the company shall be criminally and civilly liable therefore to the same extent as if it were a natural person:
Provided that –
the company shall not incur liability to any person if that person had actual knowledge at the time of the transaction in question that the general meeting, board of director, or managing director, as the case may be had no power to act in the matter or had acted in an irregular manner or if, having regard to his position with or relationship to the company, he ought to have known of the absence of such power or the irregularity”.
On Issue 3, Counsel submitted that there were hotly contested issues in the pleadings filed by the parties, which called for a resolution through oral hearing and consideration of the evidence by the Trial Judge. Counsel submitted that having failed to consider the averments in the Statement of Defence and the exhibits attached to the Appellant’s list of documents in support of its case and entered final judgment against it the Court denied the Appellant its right to fair hearing entrenched in Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999. In support of his argument, Counsel referred the Court to the cases of Adeyemi v. Y.R.S. Ike-Ouwa & Sons Ltd. (1993) (Pt. 309) 27 and Uzuda v. Ebigah (2009) 15 NWLR (Pt. 1163) 1 @ 19 where the Supreme Court held that:
“…where a court fails to give full consideration and determination of the case of a party, it is a situation touching on the violation of the party’s right to fair hearing. It is trite that where there is a breach of a party’s constitutional right to fair hearing, then the proceedings are vitiated thereby requiring the intervention of an appellate court on a complaint of the affected party”.
RESPONDENT’S ARGUMENT
On Issue One, learned Counsel for the Respondent, submitted that the Appellant’s suggestion that the effect of the use of the word ‘may’ in Order 28 Rule 2 is to forbid a party to an action from seeking to state a Special Case to the Court is erroneous. Counsel submitted further that contrary to the contention of the Appellant that Order 28 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules 2004 forbids a party to an action from filing questions in a Special Case is an attempt to extend the provision of the said Rule beyond its ordinary meaning. Counsel cited the case of Sofola v. State (2005) 2 NWLR (Pt. 937) 460 @ 497, p. C where the Supreme Court had cause to reprimand such practice. Counsel also cited the case of SCC Nig Ltd. v. Elemadu (2005) 7 NWLR (Pt. 923) 28 @ 59, F-G where this Court per Mukhtar JCA pronounced that
“…Statutes are to be given their simple and clear unambiguous meaning and the Court must in the discharge of its duties in interpretation avoid going beyond the meaning and intendment of the legislator…”
Learned Counsel contended that the Appellant addressed the Court orally and joined issues with the Respondent on the merits of the issues stated. Counsel submitted that following the Appellant’s voluntary participation in the hearing of the Special Case without any objection to the appropriateness of the procedure adopted, the Appellant is deemed to have waived the right to any procedural challenge to the validity of the Special Case. On the principle of estoppel Counsel referred to the case of Ude v. Nwara & 7 Other (1993) 2 NWLR (Pt. 278) 638 @ 662-663 where the Supreme Court stated “…By operation of the rule of estoppels a man is not allowed to blow hot and cold, to affirm at one time and deny at the other, or as it is said to approbate and reprobate….”
Counsel submitted that whether the Special Case was brought pursuant to Order 28 Rule 1 or Rule 2, the parties would still have had to address the Court on the questions formulated in the Special Case and that this was what transpired at the Trial Court and that the Appellant is just seeking to rely on technicalities to defeat a just and meritorious decision. Arguing that the reliance on mere technicalities has been deprecated by the Supreme Court, Counsel referred the Court to the case of HDP v. INEC (2009) 8 NWLR (Pt. 1143) 297 @ 327.
Counsel submitted that non-compliance with the rules of procedure cannot be raised on appeal and cited the case of INEC v. Action Congress (2009) 2 NWLR (Pt. 1126) 524 at 602, p B-C where this Court per Salami, JCA stated as follows:
“The non-compliance with the rules of procedure alleged cannot be raised on appeal. The party, having participated in the hearing of the petition, cannot complain or raise objection now. He has acquiesced in the validity of the procedure and will not be permitted to otherwise contend at this stage. See Ogbonna v. A.G. Imo State (1992) 1 NWLR (pt. 220) 647, Noibi v. Fikolati (1987) 1 NWLR (pt. 52) 619, Effiong v. Ikeme (1999) 6 NWLR (pt. 606) 260, 272, 509, 528. The appropriate place to raise objection in the circumstance of the instant appeal is at the tribunal where it was filed.”
Counsel also in Oral Argument referred this Court to Order 5 Rule 1 (2) of the High Court of Lagos State (Civil Procedure) Rules 2004 which states as follows:
“Where at any stage in the course of or in connection with any proceedings there has by reason of anything done or left undone been a failure to comply with the requirements as to time, place, manner, or form, the failure shall be treated as an irregularity and may not nullify such step taken in the proceedings. The Judge may give any direction as he thinks fit to regularize such steps”.
On Issue two, Counsel submitted that it is clear from the provisions of Order 28 Rule 1 that the Trial Judge is empowered by the Rules, not only to give his opinion on the questions stated for Special Case but also to draw from the facts and documents stated in any such Special Case any inference, whether of fact or law, which might have been drawn from them if proved at a trial. Counsel submitted that the Trial Court in its Ruling made an initial finding as follows:-
I have carefully considered the special case made by the Claimant and the written argument of the Claimant and the oral submission of the Defendant”. Counsel postulates that having made these findings, it was inevitable for the Court to proceed to pronounce that:-
“I quite agree with the claimant that a company is a legal person who can act through its authorized agents and that any decision taken on behalf of the company is binding.”
Counsel submitted that Order 28 of the Rules is a very clear, unambiguous and all encompassing provision which empowers the Judge to decide any question of law in any cause or matter which can be conveniently decided before any evidence is given or any question or issue of fact is tried and to make an Order accordingly. She reiterated the principle that Statutes are to be given their simple and clear unambiguous meaning citing the case of A.T. Ltd. v. V-A.D.H. Ltd (2007) 15 NWLR (Pt. 1056) 118 @ 175 paras. D-H.
Learned Counsel contended that since the provisions of Order 28 are clear and unambiguous, the powers of the Trial Judge to draw any inference, whether of fact or law from the facts and documents stated in any such special Case as if the same were proved at trial should be beyond contention. Consequently the Trial Judge was justified in granting the Reliefs sought.
Counsel submitted that contrary to the Appellant’s contention, Mberekpe v. Adikes (1962) ANLR 348 is not an authority for the proposition that once the phrase ‘case stated’ is mentioned, all that a Judge ought to do is express his opinion on the questions advanced for his determination without more. Counsel submitted that the facts of Mberekpe v. Adikes are distinguishable from the instant case and that the question that came up for determination before the Federal Supreme Court in that case was whether the provisions of Section 31 of the Eastern Nigeria Magistrates Court Law, 1955 which allows a Magistrate Court to Case State questions of Law to the High Court allows the High Court to determine the questions case stated to it as though it is sitting over the substantive matter on appeal. The decision of the Federal Supreme Court on that matter is therefore based on the facts and circumstances of that case and on the construction of the Eastern Nigerian Magistrates’ Court Law. Counsel submitted that the Appellant confused the application of Trial Court’s discretion under Order 28 Rule 1 on the one hand and the actual determination of the substantive suit at the interlocutory stage on the other hand. Counsel argued that the Appellant wrongly relied on the decisions in United Cement Company of Nigeria v. Dangote Industries Ltd (2006) 6 NWLR (Pt. 980) 616 and Orji v. Zaria Industries Ltd. (1992) 1 NWLR (Pt. 216) 124 and these cases do not apply at all to the provisions of Order 28 of the Rules of the High Court. Counsel contended that Order 28 Rule 1 relates to a Special Case as the heading clearly suggests and that its invocation is limited to certain instances when narrow issues of law are meant for determination at the pre-trial stage.
Counsel submitted that once the two questions in the Special Case were resolved by the Trial Court in the Respondent’s favour, there was nothing left for the Court to do but to grant the Reliefs sought. It is the submission of Counsel that the Appellant’s notion that having found that the Appellant had no valid defence in law or fact to the claim, the Trial Court ought to have referred the suit for further trial is incorrect. Further that as soon as the Trial court arrived at the finding that the Appellant’s Managing Director and Chief Executive officer, irrespective of any express authority’, had the implied authority to bind the Appellant to the separation Agreement then the issue of fraud became irrelevant and rendered the Appellant’s defence illusory.
On Issue three, counsel argued that the Appellant was given every opportunity to file a response to the special case which was heard over two months after it was filed. Counsel submitted that order 28 of the Rules is a special procedure designed to facilitate the speedy and just determination of a case and that the invocation of the phrase ‘fair hearing’ does not automatically nullify the proceedings of a Trial court, but a court must hold a balance between the contesting parties in applying the principle of fair hearing. Counsel argued further that although the Appellant failed to file any response, the Trial Judge permitted the Appellant to make oral arguments before making a Ruling on the Respondent’s Special Case application.
Counsel submitted that the failure of the Appellant to file a response to the special case was a deliberate attempt by the Appellant to delay proceedings and frustrate the Respondent from getting judgment. Relying on the case of Ajudahun v. Ajudahun (2000) 4 NWLR (Pt. 654) 605 @ 615 E, counsel contended that a party who fails to take steps to be heard cannot complain of denial of fair hearing.
RESOLUTION
On the 7th of February 2011, the Respondent’s Counsel informed the Court that she would state a case pursuant to order 28 Rules 1 & 3 of the High Court of Lagos State (civil Procedure) Rules 2004 with the consent of the Defendant. The Court thereafter adjourned for the issues for determination to be stated. On the 24th of February 2011, Respondent’s counsel filed a special case for the opinion of the court pursuant to Order 28 Rule 2 of the High Court of Lagos state (Civil Procedure) Rules 2004. On 21st March 2011 when Respondent’s counsel sought to move the special case submitted for the opinion of the court by the Respondent, the Appellant called the attention of the Trial Judge to the mix-up mentioned above and the Trial Judge responded as follows:
“Is it enough not to hear a matter because there in an error in the Heading?….. M/s Aboyade, please move your case”.
Since it is not clear from the proceedings of the Court below whether the Respondent’s Special Case was brought under Order 28 Rules 1 and 3 or under Order 28 Rule 2, I shall examine the provisions of the three Rules for a proper resolution of this Appeal.
Order 28 Rules 1, 2 and 3 state as follows:-
1. “At the pre-trial conference parties may concur in stating the questions of law arising in their case in the form of a Special Case for opinion of the Judge. Every such special case shall be divided into paragraphs numbered consecutively and shall concisely state such facts and documents as may be necessary to enable the court to decide the question. Upon the argument of such case the Judge and parties may refer to all the content of such document and the Judge may draw from the facts and document stated in any such Special Case any inference, whether of facts or law which might have been drawn from them if proved at a trial.
2. If at the pre-trial conference it appears to the Judge that there is in any cause or matter a question of law, which could be conveniently decided before any evidence is give or any question or issue of facts is tried, the Judge may make an order accordingly, and may raise such question of law or direct them to be raised at the trial either by special case or in such other manner as the judge may deem expedient, and all such further proceedings as the decision of such question of law may render unnecessary may thereupon be stayed.
3. Every Special Case agreed pursuant to Rule 1 shall be signed by the several parties or their legal practitioners and shall be filed by the claimant or other party having conduct of the proceedings.”
The Appellant’s contention in this Appeal is that for Order 28 Rule 1 of the said High Court Rules to apply, parties have to concur in stating the Special Case for the opinion of the Court and the evidence of the said concurrence by the parties should be shown by the signatures of the parties on the document stating the Special Case. It is also the Appellant’s contention that Order 28 Rule 2 can only apply where the Trial Judge raises the questions of law suo motu in which case parties would be obliged to address the Court on the questions so raised. The Respondent on the other hand is contending that the use of the word ‘may’ in Order 28 (2) does not forbid a party from submitting a Special Case without a Court Order and that in any case whether the Special Case was brought pursuant to Order 28 Rule 1 or Rule 2, the parties would still have had to address the court on the questions formulated in the special case.
It is trite, as submitted by both counsel in their briefs that the general rule governing interpretation of statutes is that where the language of the statute is clear and unambiguous, the Court should give the words their literal meaning. On this point Appellant’s Counsel referred the Court to the case of Egbe v. Alhaji & Ors (1990) 1 NWLR (Pt. 128) 546 while Respondent’s Counsel cited the case of SCC Nig. Ltd v. Elemadu (2005) 7 NWLR (Pt. 923) 28 at 59 p F-G. I agree with both Counsels.
The wordings of Order 28 of the High Court of Lagos State (Civil Procedure) Rules 2004 are clear and unambiguous and therefore should be interpreted in line with their literal meaning. Order 28 (1) states that “…. parties may concur in stating the questions of law arising in their case in the form of a Special Case for opinion of the Judge. Clearly, the literal meaning of the above statement is that there is need for parties to agree before a Special Case is submitted to a Judge. Order 28 Rule 3 further removes any ambiguity to Rule 1 by providing that “Every Special Case agreed pursuant to Rule 1 shall be signed by the several parties or their legal practitioners”. The provisions of these two Rules are devoid of any ambiguity and I see no reason whatsoever to attempt to read any other meaning into Order 28 Rules (1) and (3). Likewise, the clear, literal meaning of the following words of Order 28 Rule 2: “If at the pre-trial conference it appears to the Judge that there is in any cause or matter a question of law, which could be conveniently decided before any evidence is given or any question or issue of facts is tried, the Judge may make an order accordingly…” is that Parties are to file a Special Case under Order 28 Rule 2 in response to the Order of the Judge only. The use of the word ‘may’ in Rule 2 can only be interpreted to mean that it is not mandatory for the Trial Judge to make such an Order so that such an Order may be made at the discretion of the Trial Judge. Any other interpretation of this provision would be an attempt to extend the intention of the drafters of the Civil Procedure Rules 2004 beyond the ordinary meaning of the provision; a practice which Counsel to the Respondent, citing the case of Sofola v. State (2005) 2 NWLR (Pt. 937) 460 at 497, p C rightly pointed out that the Supreme Court frowns at. I agree with the Appellant that from the provisions of Order 28 Rules (1) and (3) it is mandatory for the Claimant and Defendant to agree and concur on the questions of law arising in their case and to jointly present those questions of law in the form of a special case signed by both parties to the Trial Judge.
In the instant case, there was no exchange or agreement on the questions of law arising in the case. The Respondent’s Counsel did not hide the fact that she acted alone as she clearly stated that the Special Case was presented by the Claimant. This was despite the fact that on 21st March 2011, the said Respondent’s Counsel told the court that she intended to file a Special Case “with the consent of the Defendant”. To now pretend that it does not matter whether the Special Case was brought under Rule (1) or (2) is obviously an afterthought and an unfortunate attempt to trivialize the clear provisions of the Rules. Again, there was no basis for filing the Special Case pursuant to Order 28 Rule (2) because the Trial Judge did not make any order as envisaged by that Rule. The Trial Judge failed in her responsibility to maintain the sanctity of the Rules of Court when she brushed aside the Defendant’s attempt to refer her to the Rules of Court giving the impression that she is not duty-bound to comply with the Rules of Court. Rules of Court are not meant to be observed at the discretion of a Judge. On the contrary, courts are duty-bound to comply with relevant Rules of Court. Addressing the issue of the consequence of non-compliance with Rules of Court, the Supreme Court in the case of Owners of the MV ‘Arabella’ v. Nigerian Agricultural Insurance Corporation (2008) 11 NWLR (Pt. 182) 1097 @ 205-206 G-C observed:
“They partake of the nature of subsidiary legislation by virtue of section 18 (1) of the Interpretation Act. Consequently, Rules of Court have the force of law. That is why rules of Court must be obeyed. And when there is non-compliance with the Rules of Court, the Court should not remain passive and helpless but should sanction the non-compliant party, otherwise the purpose of enacting the Rules of Court will be defeated” –
See also A.S.T.C. v. Quorum Consortium Ltd. (2009) 9 NWLR (Pt. 1145) 1 at 21 F-H.
The respondent was wrong in presenting the Special Case without the concurrence of the Appellant or an Order of the Trial Court and by so doing failed to fulfill the condition precedent for stating a Special Case for the opinion of the Judge. The rule is that where the law places a condition precedent to the performance of a given act, such an act cannot be said to have been duly performed without the fulfillment of the stated condition. Failure of a party to comply with the condition in the circumstance is fatal and incurable. – Ozobia v. Anah (1999) 5 NWLR (Pt. 601) 13 Ratio 2.
The claim by Respondent’s counsel that the Appellant made an oral argument without objecting to the appropriateness of the procedure adopted is not quite true. The proceedings of the Court as reflected in the Records of Appeal do not support the Respondent’s claim. What transpired in court as reflected in the proceedings of the court of 21st March 2011 at pages 185-186 of the Record of is as follows:-
Claimant: We have filed case under order 28 Rules 1 and 3 but the Defendant has not responded.
Defendant: We were served on 24/2/11; The Claimant brought it under Order 28 (2) of the High Court Rules which is to be by Order of Court.
Court: What did you file in response?
Defendant: We have not filed our response
Court: You had over a whole month and you did not file anything in response. This is in addition to the fact that the Defendant is not in Court and no reason given for their absence. Is it enough not to hear a matter because there is an error in the Heading?… M/s Aboyade, please move your case.
After the Respondent’s counsel had moved her application:
Defendant: Our response is that the case stated can only be brought in a situation where questions of law arise. In the Document filed as case stated, the Claimant in paragraph 3 shows a ‘controversy’… The claimant conceded before the court. I refer to paragraph 1.2. The fact is hotly contested. I urge the Court to look at the Reply of the Defendant…”
Obviously from the above exchange, the Appellant’s so called oral response is nothing more than an objection to the hearing by the Court of the questions filed as Special Case. The Appellant submitted that the questions are not purely issues of law but that there are facts in dispute which should not be treated as part of Special Case for the opinion of the court. The Appellant also pointed out that the Special Case was brought under Order 28 (2) whereas the Judge did not make any Order. These points raised by the Appellant in the Court below are clearly points of objection to the hearing of the Special Case, therefore the allegation of the Respondent’s Counsel that the Appellant did not object to the appropriateness of the procedure adopted by the Court below is not correct. The objection was not raised for the first time on appeal. The Appellant raised the objection in the Court below. The Trial Judge also erred by treating these points of objection as the Appellant’s oral argument in response to the Special Case filed by the Respondent. Consequently Respondent’s argument that the Appellant is deemed to have waived the right to any procedural challenge to the validity of the Special Case; and that non-compliance with the rules of procedure cannot be raised on appeal is without factual basis. Failure to fulfill a condition precedent is so fundamental to a case that it cannot be dismissed as a mere issue of technicality. The Supreme Court made this point Per Aderemi, JSC in Akpaji v. Udemba (2009) 6 NWLR (Pt. 1138) 545 @ 575-576 E-A:-
“It is true that all Courts must strive to do substantial justice in all cases before them; they must jettison technicalities and not allow same to stand in their way to dispensing justice. Section 16 of the Court of Appeal Act supra and Section 22 of the Supreme Court Act, Cap 424, Laws of the Federation of Nigeria 1990 empower the two Appellate Courts to do substantial justice in all the matters before them. But if the statute says that there will be no jurisdiction to entertain a Claim or a Counter claim, as in the instant case, until the filing fee is paid, until that event-the payment of filing fee occurred; the trial court would have no jurisdiction to entertain it. The condition precedent must not only be fulfilled, it must be seen to be properly fulfilled. That is the righteousness of the matter”.
In like manner, unless the parties concur to file a Special Case or the Trial Court orders the parties to address it on such points of Law, the Trial Court has no jurisdiction to entertain such questions under Order 28 of the High Court (Civil Procedure) Rules 2004. See the case of Drexel Energy & Natural Resources & Ors. v. International Bank Ltd. & Ors (2008) 18 NWLR (Pt. 1119) @ 388 @ 431 D-E where the Supreme Court held that
“where a pre-condition for initiating a legal process is laid down, any suit instituted in contravention of the pre-condition provision is incompetent and a court lacks jurisdiction to entertain the same.”
The Apex court went further to hold in the above case that where as in the instant case, there is a fundamental failure to comply with a mandatory requirement of a statute; the issue is not treated as one of irregularity. The failure renders the proceeding a nullity. In the circumstance Order 5 Rule 2 of the High court of Lagos State (Civil Procedure) Rules 2004 cited by the Respondent’s Counsel is not applicable in the instant case as there has been a fundamental failure to comply with a mandatory requirement of the law.
I hold therefore that the Lower court lacked jurisdiction to entertain the questions stated by the Respondent as special case for the opinion of that court on the ground that the Respondent failed to comply with the pre-condition laid down for initiating the process of stating a special case for the opinion of the court pursuant to Order 28 of the High court of Lagos state (Civil Procedure) Rules 2004. I accordingly declare the said proceeding incompetent, null and void.
On the second Issue, the Respondent’s argument that the Judge is empowered to give his opinion not only on the questions stated for special case but also to draw inferences from the facts and documents stated in any such special case is correct. Order 28 (1) empowers the Judge to do so. The problem here however is the one-sided approach of the Trial Judge in drawing her inferences. A look at the Ruling of the court reveals that the Trial Judge did not pay any attention whatsoever to the facts, documents or even the objection raised by the Appellant. The Trial Judge took time to review, analyze and weigh the Respondent’s case as presented in the statement of claim and the special case. However she did not review the statement of Defence or any of the documents pleaded by the Appellant. All she did was to summarize the Appellant’s submission without addressing the point raised by the Appellant and taking a decision one way or the other on the Appellant’s objection. The Courts have emphasized in many judicial authorities that a court has a duty to consider all material evidence and issues before it. See Okeke-Oba v. Okoye (1994) 8 NWLR (Pt 364) 670.
Where the court observed:-
“A Judge has a duty to pronounce specifically on an application or issue properly sought or raised by the parties at the Trial and failure to decide one way or the other is a serious error”.
Justice cannot be done unless a court strains to ensure that all the facts and issues put before it by both parties are considered before arriving at a decision. This Court has held that a Trial Court has a duty in its judgment to demonstrate a dispassionate consideration of all the issues raised and heard and that the judgment must reflect the result of such exercise. Savannah Bank of Nigeria v. Central Bank of Nigeria & Ors (2009) 6 NWLR (Pt. 1137) 237 @ 299 C. Since parties had joined issues, the trial judge had a duty to give equal consideration to the case of both parties – Buhari v INEC (2008) 19 NWLR (Pt. 1120) 246 @ 409-472 G-A. The failure of the Trial Court to consider the case and submissions of the Appellant is a miscarriage of Justice which renders the judgment perverse.
Respondent’s Counsel had submitted that once the two questions in the Special Case were resolved by the Trial Court in the Respondent’s favour, there was nothing left for the Court to do but to grant the Reliefs sought and that this scenario is distinguishable from a situation where judgment is given at the interlocutory stage. It is not in doubt that a case may end at the pre-trial stage where the opinion expressed by the Trial Judge completely answers the question stated, but in the instant case, I agree with the Appellant that there were disputed facts which needed to be resolved by oral evidence. For instance the Appellant averred that the terms of its contract of employment with the Respondent were embodied in the Respondent’s letter of employment, a Service Agreement and the Appellant’s Employee Handbook and not the purported Separation Agreement. The Appellant averred further in its Statement of Defence, that the Service Agreement between it and the Respondent provided that if the Respondent ceased to be a Director of the Appellant by reason of his resignation, his employment shall automatically terminate and that he shall have no claims under the agreement or otherwise in respect of such termination. The Appellant also averred that its former Managing Director did not have the authority of its Board to enter into a Separation Agreement on behalf of the Appellant. In answer to the Special Case filed for the opinion of the Court, the Trial Judge found that Mr. Conrad Clifford, as Managing Director and Chief Executive Officer of the Appellant had an implied authority to enter into binding agreements on behalf of the Appellant. But was Mr. Conrad Clifford expressly instructed not to enter into a Separation Agreement on behalf of the Appellant? The Appellant has argued that the civil liability of a Company under Section 65 of the Companies and Allied Matters act, 1990 is qualified by the proviso in that section to the effect that the company shall not incur civil liability to a person who had actual knowledge that the person who he dealt with had no power to act in the matter. The Respondent on the other hand has submitted that pursuant to Section 69 (b) of the Companies and Allied Matters act 1990, there is a presumption that Mr. Conrad Clifford had authority to exercise the functions customarily exercised by a Managing Director. To my mind, there was need to lead evidence and make findings on these and other issues before deciding whether to grant the reliefs claimed by the Respondent in the Special Case which incidentally were the same reliefs claimed in the Writ of Summons. I therefore agree that the Trial Judge determined the substantive suit prematurely at the interlocutory stage. It is the law that Courts are not to determine substantive matters at the interlocutory stage of the proceedings; and in dealing with Interlocutory matters, a court is to limit itself within the scope of the motion before it and not prejudge a crucial point which is to be tried in the substantive matter in due course Oduko v. Govt Ebonyi State (2009) 9 NWLR (Pt. 1147) 439 @ 460-461 H-B 462 B-C. I am of the view that the Trial judge in the instant case prejudged points which should have been tried in the substantive matter. The cases of United Cement Company of Nigeria v. Dangote Industries Ltd (2006) 6 NWLR (Pt. 980) 616 and Orji v. Zaria Industries Ltd. (1992) 1 NWLR (Pt. 216) 124 cited by the Appellant are relevant and applicable in the instant case. I hold therefore that the Lower Court was wrong to have granted the reliefs sought by the Respondent in his Special Case and in entering final judgment in the matter at the interlocutory stage of the proceedings. The issue is resolved in favour of the Appellant and against the Respondent.
On issue 3, it is an elementary principle of law that a party cannot be condemned for an offence or wrong unless he is heard or given an opportunity to be heard: Buhari v. INEC (2008) 19 NWLR (Pt. 1120) 246 @ 406 E-G. The right to Fair Hearing is a fundamental constitutional right guaranteed by S.36(1) of the 1999 the Constitution of the Federal Republic of Nigeria as amended. As enunciated in the case of Oyewole v. Akande (2009) 15 NWLR (pt. 1163) 119 @ 148 E-F, the attributes of fair hearing include:-
“a. The court or tribunal hearing both sides not only in the case but also on all material issues in the case before reaching a decision which may be prejudicial to any party in the case; and
b. Giving parties the opportunity of presenting the irrespective cases without let or hindrance from the beginning to end”.
The right to fair hearing in a suit is not only a common law requirement in Nigeria but also a constitutional requirement as already mentioned. The right is fundamental to all court procedure and proceedings. Thus, a party to a dispute must be heard before the determination of his rights by a court from the beginning to the end.
From the facts disclosed in the Records of Appeal, the Court below neither heard the Appellant on material issues nor gave it the opportunity to present its case before reaching a decision. It seems clear that the Trial Judge was determined to award judgment in favour of the Respondent without allowing the Appellant to present its case. At the point when the Respondent filed a special case for the opinion of the Court, the Trial Judge ought to have directed the Respondent to seek the consent of the Appellant to properly file the case under Order 28 (1) and (3) or, alternatively, raised the questions of law suo motu under Order 28 (2) and directed both parties to address the court on questions of law so raised. Unfortunately, the Trial Judge was not guided by this elementary principle of fair hearing. She ignored this principle and proceeded to determine the suit against the Appellant without hearing the Appellant. The submission of the Respondent’s counsel that the Appellant had two months to respond to the special case lacks merit because since the Trial Judge did not make any order, there was no obligation on the part of the Appellant to respond to the Special Case filed by the Respondent.
The failure of the Court to consider and determine the case of a party is a violation of the party’s right to fair hearing. And where there is a breach of a Party’s Constitutional right to fair hearing, the proceedings are vitiated, thereby requiring the intervention of an appellate court on a complaint of the affected party: Uzuda v. Ebigah (2009) 15 NWLR (Pt. 1163) @ 19 A-D; E-H, 21 F-H.
In the instant case, the failure of the Court below to consider and determine the Appellant’s case was a breach of the Appellant’s right to fair hearing and the consequence of a breach of fair hearing is that the proceedings in the case are null and void: See Omokhodion v. FRN (No. 2) 2005 (Pt. 934) 10 NWLR 581 @ 609 G-H
In the final result, this appeal has merit. The three issues formulated from the grounds of appeal are resolved in favour of the Appellant and I hold as follows:-
1. The Lower Court lacked jurisdiction to entertain the questions stated by the Respondent as Special case for the opinion of that Court on the ground that the Respondent failed to comply with the precondition laid down for initiating the process of stating a Special Case for the opinion of the Court pursuant to Order 28 of the High Court of Lagos State (Civil Procedure) Rules 2004.
2. The Lower Court was wrong in granting the reliefs sought by the Respondent in his Special Case thereby entering final judgment in the matter at the interlocutory stage of the proceedings.
3. The failure of the Court below to consider and determine the Appellant’s case was a breach of the Appellant’s right to fair hearing.
This appeal succeeds. It is hereby allowed. The Ruling of Idowu J of the High Court of Lagos State in suit No. ID/1904/2009 delivered on the 12th day of May, 2011 is set aside. The case is remitted back to the Chief Judge of Lagos State for re-assignment to another Judge for retrial. I make no order as to costs.
SIDI DAUDA BAGE, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother CHINWE EUGENIA IYIZOBA, J.C.A.
I agree with the reasoning and conclusion reached therein and have nothing extra to add.
This appeal succeeds. It is here by allowed. The Ruling of Idowu of the High Court of Lagos State in Suit No: ID/1904/2009 delivered on the 12th day of May, 2011 is set aside. The case is remitted back to the Chief Judge of Lagos State for re-assignment to another judge for retrial. I too make no order as to costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have had the benefit of reading in draft the judgment of my learned brother, CHINWE EUGENIA IYIZOBA, JCA just delivered.
I agree with the reasoning and conclusion that the appeal has merit and should be allowed.
I have nothing extra to add to the said judgment.
I therefore allow the appeal and abide by the consequential orders made in the lead judgment including the order as to costs.
Appeal allowed.
Appearances
Olumide Aju Esq. with Chukwudi Eze Esq.For Appellant
AND
Olufunke Aboyade, SAN with
Olatoye Akinbode Esq.,
Abdulwasi Musah Esq., and
Adepeju Jaiyeoba (Mrs.)For Respondent
