CHARLES OMONUA & ORS v. MARGARET OMONUA (2014)

CHARLES OMONUA & ORS v. MARGARET OMONUA

(2014)LCN/6769(CA)

In The Court of Appeal of Nigeria

On Friday, the 17th day of January, 2014

CA/L/1163/2011

RATIO

WORDS AND PHRASES: JUDICIAL DISCRETION

BASIC CRITERIA AND ATTRIBUTES OF FAIR HEARING

The basic criteria and attributes of fair hearing include

That the Court or Tribunal shall hear 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.
That the Court or Tribunal shall give equal treatment, opportunity, consideration to all concerned.
That the proceedings shall be heard in public hearing and
That having regard to all the circumstances in every material decision in the case, justice must not only be done, but must manifestly and undoubtedly be seen to have been done. A.G. FED. v. ICAN 2002; 10 NWLR (Pt. 776) 492 @ 507-509. Paragraphs g-a; ISIYAKU MOHAMMED v. KANO NATIVE AUTHORTY (1968) 1 ANLR (Pt. 424). Per RITA NOSAKHARE PEMU, J.C.A.

JUSTICES

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

Between

1. CHARLES OMONUA
2. STEVEN OMONUA
3. GODMON INVESTMENT LIMITED
4. MUNIRU IBRAHIM Appellant(s)

AND

MARGARET OMONUA
(For herself as a beneficiary of the Estate and person entitled to administer the Estate of Late Mr. Godwin Sunday Alabi Omonua) Respondent(s)

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Interlocutory decision of Justice E. O. Williams-Dawodu (Mrs.) delivered on the 26th day of October, 2011 at the High Court of Lagos State, Family and Probate Court, Lagos Judicial Division.

The Respondent (Claimant in the lower Court had claimed seven reliefs from the Appellant (Defendants in the lower court) viz:
(i) A DECLARATION that the actions of the 1st and 2nd Defendants in disposing, dissipating and intermeddling with the Estate of Late Godwin Sunday Alabi Omonuo is a breach of the duty of trust (constructive trust) imposed on the 1st and 2nd Defendants and a breach of the rights of the claimant and other beneficiaries of the Estate.
(ii) A DECLARATION that the 1st and 2nd Defendants have abused their privilege to act as administrators over the estate and are not fit to administer the Estate of the Late Godwin Sunday Alabi Omonua.
(iii) An order appointing First Trustees Nigeria Limited and the Accounting firm of David Odiwo & Co. as Administrators over the Estate of Late Godwin Sunday Alabi Omonua.
(iv) An Order of this Honourable Court appointing the Accounting firm of David Odiwo & Co. as receiver for the estate held by the 3rd Defendant until the Estate of Late Godwin Sunday Alabi Omonua is completely administered, distributed and wound up.
(v) An order of this Honourable court directing that the entire estate of Late Godwin Sunday Alabi Omonua be administered, distributed and wound up by the administrators within a period of 2 years from the judgment of this Court.
(vi) An order of perpetual injunction restraining the Defendants, their agents, privies, servants or otherwise howsoever from unlawfully selling, disposing, dealing, dissipating the real and personal of the Late Godwin Sunday Alabi Omonua.
(vii) An Order directing the 1st and 2nd Defendants to refund to the estate all monies, profits, rents and other benefits misappropriated from the Estate of Late Godwin Sunday Alabi Omonuo with on interest of 21% per annum from January, 2011 till date of Judgment and 6% interest rate from date of Judgment to final liquidation. – pages 7-8 of the Record of Appeal.

On or about the 7th of October 2011, the Appellants (Defendants in the lower Court) filed a notice of Preliminary Objection challenging the jurisdiction of the Court. In that application, the Applicants stated that there is pending before the Court a Notice of Preliminary Objection dated 23/5/2011 filed by the Defendants/Applicants challenging the legal and equitable jurisdiction of the Honourable Court to entertain the action as filed by the Claimant/Respondent which deprives the Court of the jurisdiction to entertain the Claimant/Respondents’ Motion on Notice dated 8/8/2011.

On the 18th of October 2011, the counter-affidavit filed in reply to the Notice of Preliminary Objection was said to be incompetent as it was filed out of time.

Chief Mrs. Williams Akinjide, SAN of counsel, indicated to Court on that date that they cannot file anything until the jurisdiction issue is determined – pages 498-499 of the Record of Appeal.

After further hearing on the 26th of October 2011 – pages 500-503 of the Record, the Court adjourned to the 1st of November, 2011 “for the hearing of the Claimants motion on notice, in reply to the notice of Preliminary Objection by the Defendant, and to allow the Defendant file any so that the Court may thereafter adjourn the matter for ruling once and for all”.

The Court proceeded to rule on the 26th of October, 2011. It is against this Ruling that the Appellants had appealed, and pursuant to the Practice Direction of this Honourable Court, the Appellant filed a Notice of Appeal on the 31st of October, 2011, encapsulating three (3) Grounds of Appeal.

I shall reproduce the three Grounds of Appeal shorn of their particulars. They are:
GROUND NO. 1:
THE TRIAL COURT ERRED IN LAW WHEN IT ORDERED AT THE CONCLUSION OF THE RESPONDENT’S ADDRESS, ON THE APPELLANTS’ NOTICE OF PRELIMINARY OBJECTION DATED 23/5/11 CHALLENGING THE COURTS’ JURISDICTION AND BEFORE THE APPELLANTS REPLY THEREON THAT THE COURT WOULD THEN PROCEED TO HEAR THE RESPONDENT’S MOTION FOR INJUNCTIVE RELIEFS AND THE APPOINTMENT OF INTERIM RECEIVER OVER THE ESTATE HELD BY THE 3RD DEFENDANT COMPANY SINCE IT WOULD BE NEATER TO HEAR THE TWO MOTIONS BEFORE DECIDING THE ISSUE OF JURISDICTION.

GROUND NO. 2:
THE TRIAL COURT ERRED IN LAW WHEN IT DIRECTED THE HEARING OF THE CLAIMANTS’ MOTION DATED 2/5/11 SEEKING SEVERAL INJUNCTIVE ORDERS OVER THE ESTATE HELD BY THE 3RD DEFENDANTS COMPANY AND FOR THE APPOINTMENT OF INTERIM RECEIVER FOR THE SAID ESTATE OF THE 3RD DEFENDANT COMPANY, WHEN A PRELIMINARY OBJECTION CHALLENGING THE HONOURABLE COURTS’ JURISDICTION IS PENDING AND YET TO BE DECIDED.

GROUND NO. 3:
THE COURT BELOW LACKS JURISDICTION TO ENTERTAIN THE CLAIMANTS’/RESPONDENTS’ MOTION DATED 2/5/11 WHEN IT IS CLEAR ON THE FACE OF THE SAID MOTION THAT THE RELIEFS SOUGHT RELATES TO MANAGEMENT AND OPERATION OF THE 3RD DEFENDANTS AFFAIR, PROPERTIES, ASSETS, ITS BANK ACCOUNTS AND PROPERTIES IN BENIN, THROUGH THE APPOINTMENT OF A RECEIVER CONTRARY TO SECTION 251(E) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA.

A cursory look at the Grounds of Appeal shows that Grounds 1 and 2 are the same.

Ground 3 complains of neither error of law or of misdirection. It is not competent and same is hereby struck out. A Ground of Appeal must complain of either an error of law or misdirection.

The appellation given to Grounds of Appeal is not conclusive. One has to look at the particulars whether it is one of law or mixed law and fact. But where a Ground complains of neither error of law or misdirection, it becomes at large, and vague.
Again it is not the duty of the Court to save a Ground of Appeal or rectify it. Vague and imprecise Grounds of Appeal offend the Provisions of Order 5 Rule 3 of the Court of Appeal Rules 2011. A vague Ground of Appeal is one which is couched in a manner which does not give allowance for its being understood, or where what is stated there is so uncertain and robs it of any form of intelligibility.

The grouse in Grounds 1 and 2 of the Appellants’ Notice of Appeal is that the learned trial Judge erred in law when in view of the Notice of Preliminary Objection, he directed the hearing of other motions.

The Appellants filed their Brief of Argument on the 14th of May, 2012 but same was deemed filed on the 5th of March, 2013.

The Respondent filed its Brief of Argument on the 12th of October, 2012 but same was deemed filed on the 5th of March, 2013.

The Appellants filed his Reply Brief on the 19th of March, 2013.
The Appellants distilled three (3) issues for determination which are:
(1) WHETHER THIS HONOURABLE COURT LACKS JURISDICTION TO DIRECT, AFTER HEARING ARGUMENTS OF ALL COUNSEL ON THE PRELIMINARY OBJECTION DATED 23/5/11 CHALLENGING ITS JURISDICTION TO ENTERTAIN THIS ACTION, THAT IT WOULD ENTERTAIN “IN REPLY” TO THE SAID PRELIMINARY OBJECTION, THE RESPONDENTS MOTION DATED 2/5/11 SEEKING INTERLOCUTORY INJUNCTION AND APPOINTMENT OF RECEIVER TO MANAGE THE PROPERTIES OF THE 3RD APPELLANT COMPANY.
(2) WHETHER IT IS A DENIAL OF THE APPELLANTS’ RIGHT TO FAIR HEARING FOR THE COURT BELOW TO WITHHOLD ITS DECISION AFTER HEARING ARGUMENTS ON THE APPELANTS’ PRELIMINARY OBJECTION DATED 23/5/11 AND INSTEAD ADJOURN TO ENTERTAIN THE RESPONDENT’S MOTION DATED 2/5/11.
(3) WHETHER THE COURT BELOW HAS JURISDICTION TO ENTERTAIN THE RESPONDENT’S MOTION DATED 2/5/11 WHEN IT IS CLEAR ON THE FACE OF THE MOTION THAT THE RELIEFS SOUGHT THEREIN RELATE TO MATTERS OUTSIDE THE COURTS JURISDICTION.

The Respondent distilled three issues for determination from the Grounds of Appeal. They are:
(1) WHETHER THE TRIAL JUDGE ERRED IN LAW ON THE 26TH OF OCTOBER, 2011 BY RULING THAT THE HONOURABLE COURT WILL PROCEED TO SIMULTANEOUSLY HEAR BOTH THE APPELLANTS/DEFENDANTS’ PRELIMINARY OBJECTION DATED 23/5/2011 AND THE RESPONDENT/CLAIMANT MOTION FOR INTERLOCUTORY INJUNCTION DATED 2/5/2011.
(2) WHETHER THE ACT OF THE TRIAL COURT IN DECIDING TO HEAR BOTH THE APPELLANTS’ PRELIMINARY OBJECTION CHALLENGING JURISDICTION OF THE COURT SIMULTANEOUSLY WITH THE RESPONDENT/CLAIMANT’S MOTION FOR INJUNCTION AMOUNTS TO DENIAL OF FAIR HEARING TO ANY OF THE PARTIES IN THIS SUIT.
(3) WHETHER THE TRIAL COURT HAS JURISDICTION TO ENTERTAIN THE RESPONDENT/CLAIMANT’S APPLICATION FOR INTERLOCUTORY INJUNCTION DATED THE 2/5/2011 AND THEN RESERVED DECISION ON SAME UNTIL THE ISSUE OF JURISDICTION IS FIRST AND FOREMOST DETERMINED.

On the 28th of November 2013, the parties adopted their respective Briefs of Argument.

In my humble view, the issues for determination of both parties coalesce in every material particular and that of the Respondent more or less is an adoption of the issues for determination proffered by the Appellants, except that the Appellants had added that the relief sought in the tower Court relate to issues outside the jurisdiction of the lower Court.

I shall quickly observe here that Grounds of Appeal must flow from the decision of the Court below. In the two paged ruling of the lower Court, the issue of the relief sought at the lower Court was never mentioned. It is only Ground 3 that refers to the issues of relief.
Decidedly, a Respondent’s brief and ipso facto, an Appellants’ brief must confine itself to the Grounds of Appeal. Therefore any attempt to raise an issue for determination in the Respondent’s brief that does not arise from Grounds of Appeal is misconceived, and therefore ought to be discountenanced – EBO v. NIGERIAN TELEVISION AUTHORITY (1996) 4 NWLR (Pt. 442)
Moreso, as I had struck out Ground 3 of the Ground of Appeal as being incompetent. Any issue flowing from that Ground becomes incompetent and must be struck out. Therefore Issue No. 3 in the Appellants’ Brief of Argument is hereby discountenanced.

ISSUES NO. 1 AND 2
I shall treat Issues Nos. 1 and 2 in the consideration of this Appeal. The two issues in my view deal with the question whether the learned trial Judge lacks jurisdiction to entertain any other motion having been served of a Notice of Preliminary objection which had been argued.

This issue borders on the exercise of the discretion of the Court below.
Let me quickly observe here that the grouse of the Appellants is not that the learned trial Judge refused to entertain the Notice of preliminary Objection. He did not fail to hear it. He in fact took arguments on it. He only said that he would more or less consider all the applications together.

At page 2 of the Ruling of the Court – page 505 of the Record of Appeal, he observed inter alia
“Having carefully considered the Court proceedings, I have come to the conclusion and hereby state that as indicated on the adjourned dated the Claimant’s motion would be taken in reply to the preliminary objection.
This in my humble view would be neater, it is for economy of time, money and energy, as there will he no delay. Where it is found that there is no jurisdiction, I believe that would be the end of the story and where it is found otherwise the court would then go ahead and decide the said motion one way or the other. This is my view and humbly is to do substantial Justice in the instant suit and at this stage of the same.”

May I ask, where the infringement of any right to fair hearing is in the circumstances?
Where is any wrong exercise of discretion by the learned trial Judge? With respect, I find none.

The basic criteria and attributes of fair hearing include
1. That the Court or Tribunal shall hear 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.
2. That the Court or Tribunal shall give equal treatment, opportunity, consideration to all concerned.
3. That the proceedings shall be heard in public hearing and
4. That having regard to all the circumstances in every material decision in the case, justice must not only be done, but must manifestly and undoubtedly be seen to have been done. A.G. FED. v. ICAN 2002; 10 NWLR (Pt. 776) 492 @ 507-509. Paragraphs g-a; ISIYAKU MOHAMMED v. KANO NATIVE AUTHORTY (1968) 1 ANLR (Pt. 424).

It is worthy of note that “fair hearing” does not mean “fair trial”. The former involves the latter, and fair trial consists of the whole hearing. No difference between the two.

The true test of fair hearing is the impression of a reasonable person at the trial, whether from his observation, Justice has been done in the case.

On the issue of the exercise of its judicial discretion, such must be exercised on fixed principles of equity and reason to both sides. This, exercise of discretion must be justifiable. – UBA v. STAHIABU GMBH & CO. K.G. 1985 3 NWLR (Pt. 110) pg. 374/378. Paragraph 729.
Decidedly, acting judicially imports the consideration of the intents of both sides of the matter and also weighing these intents in order to arrive at a just and fair decision.
LEONARD ERONINI & 4 ORS v. FRANCIS IHEURO 1989 2 NWLR (Pt. 101) 46.

Judicial discretion means the power exercised in an official capacity in a manner which appears to be just and proper under a given situation. Therefore, there is no hard and fast rules as to the exercise of a Judicial discretion by Court. This is because, if such happens, the discretion becomes fettered – ODUSOTE v. ODUSOTE 1971 1 ALL NLR 219 @ 222; ANYAH v. AFRICAN NEWSPAPER OF NIG. LTD. 1992 6 NWLR (Pt. 247) @ 317.
That issues fall within a Judge’s discretion, is being governed by no Rule of law. Its resolution depends on the individual Judge’s assessment of what is fair and just to do in a particular case.
This is subject to the exception that where a situation is governed by a Rule of Law, where the interpretation of the provisions of a statute is in question, any discretion exercised must be exercised in accordance with the provisions of the Statute. Thus it is only upon known or undisputed facts, and disclosed facts, that a court seeking to do what is fair and equitable may exercise its discretion.
Facts must exist before discretion is exercised – EZEIGWE & 2 ORS v. NWAWULU & 2 ORS (2010) 2-3 S.C. (Pt. 1) 35-36.
As stated by the Supreme Court of Record over the years, although discretion is not fettered by precedence, the manner of its exercise must however be guided by some established principle – BAMAIYI v. STATE 2001 7 NWLR (Pt. 715) 477; ABACHA v. THE STATE 2002 5 NWLR (Pt. 761) 638; CHINEMELU v. C.O.P. 1995 4 NWLR (Pt. 390) 467.
Indeed in BAMAIYI’S case the Apex Court held that the criteria are not exhaustive – it will not be expected that all the factors will be applicable in every case.

In applying the above principles of law to the issues for determination as distilled by the Appellants, it is apparent that this appeal is misconceived and ought to be dismissed.

There is nothing to show that any of the parties were denied fair hearing.
The learned trial Judge denied nobody any hearing. All she did was to say how she would hear the applications before her, including the Notice of Preliminary Objection, and she in her wisdom did say that she would consider both together, and that if the Notice of preliminary Objection succeeds, that would end the matter. Decidedly, taking applications together with Preliminary objection is in order – SENATE PRESIDENT v. NZERIBE (2004) 9 NWLR (Pt. 878) AT 251 AT 274.
That, in my view was a right and proper exercise of her judicial discretion. That discretion cannot be faulted. It is not the function of the parties or their counsel to dictate to the Judge how to exercise its discretion. Once the discretion is, in the eyes of the reasonable man, exercised fairly and equitably, that suffices.

This puts an end to this Appeal and the result is that Issues 1 and 2 in the Appellants’ Brief of Argument are resolved in favour of the Respondent and against the Appellants.

The Appeal fails and same is hereby dismissed accordingly.

The Ruling of Hon. Justice E. O. Williams-Dawodu (Mrs.) in Suit No. LD/824/11 delivered on the 26th day of October, 2011 at the High court of Justice, Family and Probate Court (19) Lagos Judicial Division is hereby affirmed.

Parties to bear their own costs.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: The crux of the appeal arose from the Ruling of the High Court of Justice of Lagos State (Williams-Dawodu J.) in the course of which it held inter alia in page 505 of the record of appeal (the record) that in order to save time, money and energy it would take the preliminary objection to jurisdiction together with the motion for interlocutory injunction and that –
“… where it is found that there is no jurisdiction, I believe that would be the end of the story and where it is found otherwise the court would then go ahead and decide the said motion one way or the other. This is my view and humbly is to do substantial justice in the instant suit and at this stage of the same”:
Perfect; commendable. That is how it should be done to save scare judicial time and resource.

Time is a precious natural asset. It waits for no one. It must be managed efficiently, properly and prudently. The court below was therefore on the right track when it decided to take the two preliminary applications together and wisely, in my view, arranged to determine the threshold issue of jurisdiction before venturing into the other interlocutory application in one package. See Amadi v. N.N.P.C. (2000) 10 NWLR (Pt. 674) 76 at 100; Senate President v. Nzeribe (2004) 9 NWLR (Pt. 878) 251 at 274; and Olorunkunle and Anor. v. Adigun and Ors. (2012) 6 NWLR (Pt. 1297) 407 at 426. The appellants’ right to fair hearing was, therefore, not infringed by the court below, as it did not refuse to entertain the application of the appellants.
For the reason given above and the admirable reasons given in the lead judgment of my learned brother, Rita Nosakhare Pemu, J.C.A., which I had the privilege of a preview, I too see no merit in the appeal and hereby dismiss it and affirm the said Ruling of the court below. Parties to bear their costs.

CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, RITA NOSAKHARE PEMU, J.C.A. I agree entirely with the judgment. The case of Senate President v. Nzeribe (2004) 9 NWLR (Pt. 878) 251 cited by learned counsel for the Respondent is authority for the view that the Appellants’ appeal is lacking in merit. The court therein observed:
“The procedural requirement that an issue of jurisdiction should be resolved first does not mean that it must be done separately. It can be taken along arguments on the merits of the case. The important thing is that the court should first express its views on the issue of jurisdiction before considering the merits of the case.”
All the authorities cited by the Appellant dwell on the necessity to determine issue of jurisdiction first. None of them is authority for the view that issue of jurisdiction cannot be taken with other issues. It is indeed a matter within the discretion of the court. An appeal court will not interfere with the exercise of the discretion to hear the issues together as long as that of jurisdiction is determined first. The point is so trite that one is tempted to agree with the Respondent that this appeal is a mere ploy to delay the hearing of the case. I too find no merit in the appeal. I also dismiss it and uphold the ruling of the lower court. I abide by the order in the lead judgment as to costs.

Appearances

Chief (Mrs.) A. W. Akinjide (SAN) with Isaac Kadiri Esq.For Appellant

AND

N. Oragwu Esq.
M. IyoreFor Respondent