MR. KAMARU GBADEBO SHITTU v. KWARA STATE POLYTECHNIC, ILORIN & ORS
(2014)LCN/7308(CA)
In The Court of Appeal of Nigeria
On Monday, the 23rd day of June, 2014
CA/IL/29/2014
RATIO
APPEAL: PRELIMINARY OBJECTION IN AN APPEAL; THE NATURE AND PURPOSE OF A PRELIMINARY OBJECTION
A preliminary objection in the real sense of it is an attack on the entire appeal with the aim of scuttling same in limine. Where the objection as in this case is against two Grounds of Appeal, it is intended to prevent the Court from considering those two Grounds and the issue arising therefrom in the determination of the appeal. By the nature and purpose of a preliminary objection, be it directed at the entire appeal or on grounds of appeal, once raised, it must be determined before taking further action on the appeal. See: Oluwarotimi O. Akeredolu V. Dr. Rahman Olusegun Mimiko & ors. (2013) LPELR – 21413 (S.C). per. UCHECHUKWU ONYEMENAM, J.C.A.
COURT: RATIO DECIDENDI; WHAT IS RATIO DECIDENDI
In a nutshell a ratio decidendi is the essence of the reasons for a Court’s decision in its purest and most concentrated form. It is the finding or statement which forms part of the formal judgment or order of the lower court. See; Lake v. Lake (1955) 2 All E.R. 538. It is the principle or rule of law on which a Court’s decision is founded. See: Blacks’ Law Dictionary, 9th Ed. P. 1376. per. UCHECHUKWU ONYEMENAM, J.C.A.
COURT: COURT’S DISCRETION; WHETHER THE COURT’S DISCRETION MUST BE EXERCISED BASED ON THE FACTS AND CIRCUMSTANCES MADE AVAILABLE TO IT FROM WHICH IT WILL ARRIVE AT A CONCLUSION RELYING ON THE APPLICABLE LAW
Any party who seeks the indulgence of a Court for the exercise of its discretion in his favour must place sufficient necessary materials before the Court to sway its mind to the exercise of the discretion. The Court’s discretion must be exercised based on the facts and circumstances made available to it from which it will arrive at a conclusion relying on the applicable law. Great emphasis is placed on the fact that the exercise of a judicial discretion is not done without concern for what is fair or right. It is not preposterous nor bizarre but realistic and reasonable. See: Yar’Adua V. Lado (2011) 9 S.C.M 126; Duwin V. Beneks (2000) 15 NWLR (Pt. 689) 66; Ekwerife V. Wayne W.A Ltd. (1998) 4 NWLR (Pt. 545) 249. per. UCHECHUKWU ONYEMENAM, J.C.A.
COURT: AN ORDER AND A JUDGMENT; THE DIFFERENCE BETWEEN AN ORDER AND A JUDGMENT
There must be a clear understanding that while an order may under given circumstance amount to a judgment, both order and judgment are distinguished as a result of the different consequences arising from them especially in the matter of enforcement, appeal and the time within which the proceedings to annul them must be taken. For instance again, Rulings on motions are ordinarily orders and not judgments. See: A.C. Freeman, A. Treatise of the Law of judgment page 9 at 28 (Edward W. Tuttle ed., 5th ed. 1925). Furthermore, Henry Campbell Black, A Treatise on the Law of judgments page 1 at 5 (2nd ed. 1902); said:
“An Order is the mandate or determination of the Court upon some subsidiary or collateral matter arising in an action, not disposing of the merits) but adjudicating a preliminary point or directing some steps in the proceedings.” In Maderibe v. F.R.N (2014) 5 NWLR (Pt. 1399) 68 at 91, the apex Court laid to rest the issue to as whether Order is the same as judgment when Mohammed, J.S.C. opined thus: “An Order is defined in Black’s Law Dictionary Fifth Edition at page 988 as a mandate, percept, command or directive authoritatively given, rule or regulation, direction of a Court or a Judge made or entered in writing and not included in a judgment.” per. UCHECHUKWU ONYEMENAM, J.C.A.
CONSTITUTIONAL LAW: FUNDAMENTAL RIGHT TO FAIR HEARING; WHETHER IT DOES NOT CONSTITUTE A DENIAL OF FAIR HEARING OR OCCASION MISCARRIAGE OF JUSTICE MERELY BECAUSE A TRIAL OR APPELLATE COURT DID NOT CONSIDER A PARTICULAR ISSUE OR ISSUES FOR CONSIDERATION IN THE DETERMINATION OF A CASE
It is settled law that when an issue placed before the Court is not crucial or material and as such does not necessarily determine the real issue between the parties, non reference or pronouncement on it by the Court does not prima facie amount to denial of fair hearing nor adjudged to have occasioned a miscarriage of justice. See: F.M.H. V. C.S.A Ltd. (2009) 9 NWLR (Pt. 1145) 193 at 222 paras D – E where Musdapher CJN as he then was, opined: “In my respective view, it does not constitute a denial of fair hearing or occasion miscarriage of justice merely because a trial or appellate Court did not consider a particular issue or issues for consideration in the determination of a case”. per. UCHECHUKWU ONYEMENAM, J.C.A.
JUSTICES
MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
MUSA HASSAN ALKALI Justice of The Court of Appeal of Nigeria
Between
MR. KAMARU GBADEBO SHITTU-JUDGMENT CREDITOR/
APPELLANT Appellant(s)
AND
KWARA STATE POLYTECHNIC, ILORIN
KWARA STATE POLYTECHNIC COUNCIL- JUDGMENT DEBTORS/RESPONDENT
UNITED BANK FOR AFRICA PLC
MAINSTREET BANK PLC – GARNISHEES/
RESPONDENTS Respondent(s)
UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): The appeal is against the ruling of the trial Court setting aside its earlier order nisi made pursuant to an ex-parte application under the Garnishee proceedings. In the said ruling spanning pages 83 to 94 of the record, the trial court set aside the order nisi following the application of the 1st and 2nd Judgment Debtors/Respondents who shall herein be referred to as the 1st set of Respondents.
The Appellant initiated, via an ex-parte application a garnishee proceedings against the accounts of the 1st set of Respondents kept with the 1st and 2nd Garnishees/Respondents, herein referred to as the 2nd set of Respondents. In the affidavit in support of the ex-parte application, the Appellant claimed the sum of N9, 037,794.46 (Nine million, thirty seven thousand, seven hundred and ninety four naira, forty six kobo) to be his salary arrears. The ex-parte application, the accompanying processes and documents span pages 1 – 13 of the record.
After hearing the application, the trial Court on 29th October, 2013 granted an Order nisi against the account of the 1st set of Respondents kept with the 2nd set of Respondents. The order nisi is contained at pages 14 and 15 of the record. The 1st set of Respondents filed an application for setting aside the order nisi on certain grounds listed on the motion paper. The said motion dated 8th November, 2013 with all the accompanying documents and processes can be seen at pages 16 to 46 of the record. The Appellant’s counter affidavit with the Exhibits and the written address against the said motion span pages 47 -72 of the record. The 1st set of Respondents also filed a further affidavit and a written reply on point of law. The processes are contained at pages 73 – 79 of the record.
Consequent upon the adoption of addresses by Counsel to the parties, the trial court in its ruling contained at pages 83 to 94 of the record, discharged the Order nisi and struck out the garnishee proceedings.
Dissatisfied with the ruling, the Appellant has appealed to this court on the grounds contained in the Notice of Appeal which spans pages 95 – 100 of the record.
Appeal was heard on 15th May, 2014 after parties through their Counsel had exchanged briefs. On the day the appeal was heard, the learned counsel for the 1st set of Respondents invited the court to their Preliminary objection argued at pages 2 – 8 of their brief. Dr. Olatoke adopted the 1st set of Respondents’ brief and relied on the argument on the Preliminary Objection therein to urge the Court to uphold the objection.
The learned Counsel for the Appellant referred to, adopted and relied on the Appellant’s response to the 1st set of Respondents’ argument on the Preliminary objection in his reply brief at pages 1 – 4. He urged the Court to discountenance the objection and determine the appeal on its merit. Thereafter, Mr. Alajo for the Appellant argued his appeal and urged the Court to allow the appeal. Dr. Olatoke replied on behalf of the 1st set of Respondents and urged the Court to dismiss the appeal. Mr. Adedayo Adediji for the 3rd Respondent did not file any process as he said he had nothing to urge on the Court. Also, Prince J.O. Ijaodola (Jnr.) said the 4th Respondent did not file any brief.
In the Appellant’s brief settled by Mr. Y.A. Alajo, filed on 19th February, 2014, 2 issues were distilled for the determination of the appeal. The issues are:
“1. Considering the case of the Judgment Debtors/Respondents and the circumstances of this case, whether the trial court was not wrong to have set aside the order nisi on the grounds of uncertainty of the judgment sum and non attachment of the whole judgment sought to be enforced.
2. Whether the failure of the trial court to pronounce on the additional issue raised by the Appellant had not occasioned a miscarriage of justice.”
On their own, in the 1st set of Respondents’ brief which was prepared by Dr. J.O. Olatoke and filed on 28th April, 2014 but deemed properly filed and served on 8th May, 2014, the said Respondents also formulated 2 issues for determination, to wit:
“1. Whether the trial court was not right to have set aside the Order Garnishee nisi.
2. Whether the trial court is bound to pronounce on the additional issue raised by the Appellant which has no bearing on the application before it.”
The 2 sets of issues formulated by the parties are same except that the Appellant’s 2 issues are verbose. Since it is the Appellant’s case, I will as well determine the appeal based on the issues as formulated by him. However before I embark on the resolution of the issues I shall first determine the Preliminary Objection.
PRELIMARY OBJECTION
Dr. Olatoke submitted that Ground 2 of the Appellant’s Grounds of Appeal are appeal against an obiter dictum and not the ratio of the case. He made extensive arguments on this, citing authorities and referring to relevant portions of the judgment as in the record from paragraphs 1.02 – 1.12 at pages 2 – 8 of the 1st set of Respondents’ brief.
He finally submitted that Ground 2 having been formulated from an ‘obiter dictum’ and not a ‘ratio decidendi’ should be struck out with issue 1 raised therefrom. He also contended that Grounds 1, 3, 5 and 6 which Grounds were argued together with Ground 2 from where issue 1 was distilled should equally be struck out as they had been tainted by the incompetence of Ground 2. He relied on Sosanya v. Onadeko (2000) 11 NWLR (Pt.677) 34.
He urged the Court to find the objection meritorious and uphold same by striking out Grounds 1, 2, 3, 5 and 6 with the issue formulated therefrom.
Mr. Alajo in reply to the Preliminary Objection submitted that the submissions of the 1st set of Respondents are self defeating. He contended that a careful perusal of Grounds 2 and 3 vis-a-vis the affidavits and written address of Counsel in juxtaposition with the findings of the trial court contained in the ruling will show that the grounds complained about the ratio decidendi and not the obiter of the ruling. He cited: Kupolati V. Oke (2009) FWLR (Pt. 486) 1858 at 1907.
He urged the court to discountenance the objection and hear the appeal on its merit.
RESOLUTION OF PRELIMINARY OBJECTION
Firstly, let me note that the 1st set of Respondents, though raised objection against the competence of Grounds 2 and 3 of the Notice of Appeal only proffered argument on Ground 2. Thus the objection on Ground 3 is held abandoned.
A preliminary objection in the real sense of it is an attack on the entire appeal with the aim of scuttling same in limine. Where the objection as in this case is against two Grounds of Appeal, it is intended to prevent the Court from considering those two Grounds and the issue arising therefrom in the determination of the appeal. By the nature and purpose of a preliminary objection, be it directed at the entire appeal or on grounds of appeal, once raised, it must be determined before taking further action on the appeal. See: Oluwarotimi O. Akeredolu V. Dr. Rahman Olusegun Mimiko & ors. (2013) LPELR – 21413 (S.C).
In a nutshell a ratio decidendi is the essence of the reasons for a Court’s decision in its purest and most concentrated form. It is the finding or statement which forms part of the formal judgment or order of the lower court. See; Lake v. Lake (1955) 2 All E.R. 538. It is the principle or rule of law on which a Court’s decision is founded. See: Blacks’ Law Dictionary, 9th Ed. P. 1376.
I have gone through the record, making particular reference to the affidavit evidence, paragraph 5.07 of the 1st set of Respondents’ written address in support of Motion on Notice at page 46 of the record, paragraph 2.09 of the 1st set of Respondents’ reply on point of law at pages 78 – 79 of the record and also the holding of the trial Court at pages 92 – 93; it is obvious that the certainty or otherwise of the Judgment – debt and its effect on the jurisdiction of the trial Court to grant the order nisi was a life and contentious issue in the case.
From the ruling, the principle of law that in a grant of order nisi the judgment sum must be certain was among the reasons why the learned trial Judge held that it lacked jurisdiction to have made the order nisi since the judgment sum was uncertain. That was a ratio decidendi which Ground 2 of the Grounds of appeal challenged. Ground 2 of the Grounds of Appeal is therefore competent and I so hold.
The Preliminary objection is therefore misconceived and accordingly discountenanced. The appeal will be determined on its merit.
I shall now proceed with the resolution of the 2 issues I adopted for the determination of this appeal.
ISSUE 1
The learned Counsel for the Appellant referred to the case of Amadu v. Yankumaki (2012) All FWLR (Pt. 626) 503 at 519, to submit that, the learned trial Judge was wrong to have set aside the order nisi on the grounds that the judgment sought to be enforced was neither attached nor certain; when that was not the case presented for adjudication. Mr. Alajo in the Appellant’s brief contended that the trial Court raised the issue of non attachment of judgment suo motu without calling on the parties to address it on the same, thus, making case for the 1st set of Respondents. This he submitted is against the settled law and the principle of fair hearing. He cited; Falodun v. Ogunse (2010) All FWLR (Pt. 504) 1404 at 1420; Amadu V. Yantunmaki (supra).
Furthermore, the learned Counsel contended that Exhibits A and B the Enrolled Orders of the judgments of the High Court and the Court of Appeal respectively, attached to the motion ex-parte suffixed for the requirement that the judgment sought to be enforced must be attached.
He referred to Civil Process Act, Cap S6, 2004. He urged the court to hold that the decision of the trial Court setting aside the Order nisi on this ground occasioned a miscarriage of justice.
Again, Mr. Alajo contended that the learned trial Judge was wrong to hold that it lacked the jurisdiction to make the order nisi on the account that the judgment sum is not certain and that the non attachment of the judgment denied the trial court the necessary material to resolve the certainty of the judgment sum. In support of this argument, he quoted paragraphs 4, 5, 9, 10, 18, 19 of the 1st set of Respondents’ affidavit at pages 18 – 23; and paragraphs 4, 5, 13, 14, 15, 16, 17, 18, 19, 20, 21, 23 and 25 of the Appellant’s counter-affidavit contained at pages 47 – 52 of the record.
Furthermore the learned Counsel argued that assuming without conceding that there is a dispute as to the certainty of the judgment sum, that, the trial Court should have called for further evidence to resolve the differences in the affidavits as to the certainty of the amount. He leaned on: Ikedigwe v. FAI (2011) All FWLR (Pt. 598) 845 at 863; Adekola v. Ailara (2011) All FWLR (Pt. 572) 1696 at 1729.
He urged the Court to resolve the issue in favour of the Appellant.
Dr. Olatoke for the 1st set of Respondents submitted that the trial court was right to have considered the issue of non attachment of the judgment sought to be enforced to the motion ex-parte as same was raised at paragraphs 7-15, particularly paragraph 6 of the supporting affidavit of the Motion on Notice by the 1st set of Respondents. He cited:
Marine Management Associates Inc. v. National Maritime Authority (2012) 18 NWLR (Pt. 1333) 506 at 532; Akeredolu v. Mimiko (incomplete citation); B M N L v. Ola Ilemorola Ltd. (2007) All FWLR (Pt. 379) 1340 at 1369. The learned counsel therefore argued that the issue of non attachment of the judgment of the court was not raised suo motu by the Court in the light of the above.
He submitted that assuming without conceding that the issue of non attachment of the judgment was raised suo motu by the trial court and without giving the parties opportunity to address it on the same; it is not automatic that the appellate court will set aside the decision based on it. He relied on; Effiom v. C.R.S.I.E.C (2010) 14 NWLR (Pt. 1213) 106 at 133; Alh. I.Y Ent. Ltd. V. Omolaboje (2006) 3 NWLR (Pt.966) 195 at 203; Imah V. Okogbe (1993) 9 NWLR (PT.316) 159; Olubode v. Salami (1985) 2 NWLR (Pt. 7) 282.
In reiteration, the learned Counsel contended that in the circumstances of this case, the trial court was backed by the law to have raised the issue of non attachment of the judgment sought to be enforced suo motu without giving the parties the opportunity to be heard. He submitted that the same was not fatal to the 1st set of Respondent’s case. He cited: Omokuwajo v. F.R.N (2013) 9 NWLR (Pt. 1359) 300 at 332; Victino Fixed Odds Ltd. V. Ojo (2010) 8 NWLR (Pt. 1197) 486 at 505.
On the Appellant’s contention that the attachment of the enrolled order of the judgment to the motion ex-parte satisfied the condition of attachment of judgment, it was submitted for the 1st set of Respondents that the argument was not justified by Section 19 of the Sherriffs and Civil Processes Act, Cap S6, LFN, 2004 nor the apex Court’s decision in, Maderibe V. F.R.N (2014) 5 NWLR (Pt. 1399) 68 at 91.
On the Appellant’s contention that the trial court ought to have called oral evidence to ascertain the evidence, the herein Respondents argued that this does not arise as doing so will amount to the court dabbling into the issue not placed before it. The 1st set of Respondents stressed that the issue before the court was an application to set aside the order nisi made and not the hearing of the Garnishee Proceedings on its merit as a result of which the order nisi could be made Absolute. He submitted that the Court cannot develop a case for the parties before it.
He relied on: Udengwu v. Uzuegbu (2003) 13 NWLR (Pt. 836) 141.
Dr. Olatoke urged the court to resolve the issue in favour of the Respondents.
RESOLUTION OF ISSUE 1
Any party who seeks the indulgence of a Court for the exercise of its discretion in his favour must place sufficient necessary materials before the Court to sway its mind to the exercise of the discretion. The Court’s discretion must be exercised based on the facts and circumstances made available to it from which it will arrive at a conclusion relying on the applicable law. Great emphasis is placed on the fact that the exercise of a judicial discretion is not done without concern for what is fair or right. It is not preposterous nor bizarre but realistic and reasonable. See: Yar’Adua V. Lado (2011) 9 S.C.M 126; Duwin V. Beneks (2000) 15 NWLR (Pt. 689) 66; Ekwerife V. Wayne W.A Ltd. (1998) 4 NWLR (Pt. 545) 249.
In the instant appeal where the Appellant had obtained an Order nisi based on his motion ex-parte for which he attached an enrolled order of the judgment he sought to enforce; the 1st set of Respondents sought and got the Order nisi set aside on ground that the Appellant did not place necessary material to wit: “the judgment sought to be enforced before the trial Court to enable the same exercise its discretion in favour of the Appellant, more so since the sum due to be recovered was not certain.
From the argument before this Court, there is absolute necessity to determine whether necessary material was placed before the trial Court to empower it make the Order nisi.
By Section 83 of the Sheriffs and Civil Process Act, the judgment sum sought to be enforced must be certain or ascertainable in the sense that it must be capable of being discovered by mere matter of arithmetic without any other further investigation.
The enrolled Orders placed before the Court do not contain details of the judgment sought to be enforced. There is no reference anyway as to the money due to be enforced. See pages 8 – 10 of the record.
Paragraph 3 and the question sought to be determined as stated in the Order, raised questions as to the ascertainment of the judgment sum which answers cannot be found in the enrolled order of the trial Court; as per Exhibit A at pages 8 – 9 of the record. From the enrolled orders which materials were placed before the Court, the trial Court needed to look outside them to be assisted in taking its decision that the judgment recovered by the Appellant had to be satisfied as to a given or certain amount.
The Appellant argued that the enrolled order placed before the Court satisfied the condition requiring that the judgment sought to be enforced should be attached in the event that the Court so holds. He referred to Sections 19 of the Sherriffs and Civil Process Act, Cap. S6, 2004 on the definition of judgment.
Section 19 of the Sherriffs and Civil Process Act (supra) defines judgment and Order respectively thus:
“Judgment” includes “Order”
“Order” includes “an injunction, an order for the payment of the costs of any party, and an order for the payment of a counter claim by a Plaintiff.”
In my understanding of the word includes, Section 19 of the Sherriffs and Civil Process Act has not made an order a judgment and vice versa. It has merely said that a judgment contains an order. In other words an Order is part of a judgment.
So when a condition precedent to vest a Court with jurisdiction requires the attachment of a judgment of the Court the attachment of part or component of the judgment shall not suffice. Accordingly, by virtue of Section 19 of the Act (supra); the attachment of the enrolled order of the judgment sought to be enforced does not satisfy the condition precedent.
An enrolled order which simply means a registered or recorded order does not mean judgment.
There must be a clear understanding that while an order may under given circumstance amount to a judgment, both order and judgment are distinguished as a result of the different consequences arising from them especially in the matter of enforcement, appeal and the time within which the proceedings to annul them must be taken. For instance again, Rulings on motions are ordinarily orders and not judgments. See: A.C. Freeman, A. Treatise of the Law of judgment page 9 at 28 (Edward W. Tuttle ed., 5th ed. 1925).
Furthermore, Henry Campbell Black, A Treatise on the Law of judgments page 1 at 5 (2nd ed. 1902); said:
“An Order is the mandate or determination of the Court upon some subsidiary or collateral matter arising in an action, not disposing of the merits) but adjudicating a preliminary point or directing some steps in the proceedings.”
In Maderibe v. F.R.N (2014) 5 NWLR (Pt. 1399) 68 at 91, the apex Court laid to rest the issue to as whether Order is the same as judgment when Mohammed, J.S.C. opined thus:
“An Order is defined in Black’s Law Dictionary Fifth Edition at page 988 as a mandate, percept, command or directive authoritatively given, rule or regulation, direction of a Court or a Judge made or entered in writing and not included in a judgment.”
In the final analysis and for what I had said above the enrolled orders – Exhibits A and B attached to the motion ex-parte did not satisfy the requirement that the judgment sought to be enforced must be placed before the Court and as such the material necessary to assist the trial Court in arriving at its decision in the exercise of its discretion to make the Order nisi was not placed before it. This accordingly robbed the Court of the jurisdiction to make the Order nisi in the first place.
On the fact that the learned trial Judge raised the issue of non attachment of the judgment suo motu without giving the parties the opportunity to address it on that, I refer to paragraphs 1 – 14 particularly 6 of the supporting affidavit of the Motion on Notice by the 1st set of Respondents to note that the herein Respondents pleaded that the material facts were not placed before the Court before the Order nisi was granted on 29th October, 2013. The material facts which are not contained in the enrolled orders attached could only be found in the judgments of the court. It is my view therefore that the 1st set of Respondents in their depositions in their affidavit evidence sufficiently brought in the issue of non attachment of judgment which contains the necessary facts that ought to have been placed before the trial Court; it is not therefore correct to say that the Court raised the issue suo motu.
However, in the event that I am wrong that the trial Court did not raise the issue suo motu without hearing from the parties, this will still not be fatal to the case of the 1st set of Respondents by virtue of the decision of the apex court in: Omokuwajo v. F.R.N. (2013) 9 NWLR (Pt. 1359) 300.
The holding of Rhodes-Vivour, J.S.C. in the above case at page 332 paras D – F is apposite. It was held:
“The need to give parties a hearing when a Judge raises an issue on his own motion or suo motu would not be necessary if:
(a) The issue relates to the Court’s own jurisdiction
(b) Both parties are/were not aware or ignored a statute which may have may have bearing on the case. That is to say where by virtue of statutory provision that Judge is expected to take judicial notice. See Section 73 of the Evidence Act.
(c) When on the face of the record serious questions of fairness of the proceedings is evident”
(Underlining is ours for emphasis)
See: also Victino Fixed Odds Ltd. V. Ojo (2010) 8 NWLR (Pt. 1197) 4867 at 505.
Having earlier held in this judgment that, the non placing of sufficient material before the trial Court robbed it of its jurisdiction; it then follows from the above Supreme Court’s decision that the trial Court was right to have raised the issue suo motu, decided on it, without calling for addresses from the parties as same touches on its jurisdiction and qualifies as an exception to the general rule.
As to whether oral evidence should have been called in the circumstances of the case to resolve the certainty of the judgment sum, it is not in doubt that where there is irreconcilable conflict in the affidavits, further evidence is called to resolve same. See: Ikedigwe V. Fai (2011) All FWLR (Pt. 598) 845; Adekola V. Ailara (2011) All FWLR (Pt. 572) 1696.
Also it is trite law that the Court cannot develop a case for the parties before it. See: Udengwu V. Uzoegbu (2003) 13 NWLR (Pt. 836) 141.
In the instant appeal, what was before the trial Court was an application to set aside the order nisi for want of jurisdiction as necessary material was not placed before the court when it made the order. What the trial court therefore needed to decide was, whether necessary material was placed before the court in which case it had jurisdiction and otherwise it would not have had the jurisdiction to make the order nisi. The trial court was not called upon to ascertain the judgment sum. It is my view that it is only in a Garnishee proceedings pursuant to Section 83 of the Sherriffs and Civil Process Act and before an order nisi is made Absolute that oral examination and or the resolution of conflicting affidavits are necessary. Accordingly, as it was not the hearing of the Garnishee proceedings on its merit in a bid to make the order nisi absolute that was in question but an application to set aside the order nisi; the calling of oral evidence to resolve the certainty of the judgment sum would have amounted to the court putting forth a different case other than the one placed before it by the 1st set of the Respondents. This obviously would have meant developing the case of the 1st set of Respondents by the trial court which the law abhors.
From what I have said above the learned trial Judge was right to have refused to call oral evidence to ascertain the judgment amount.
In all therefore, I hold that the learned trial Judge was right in setting aside the order nisi for lack of jurisdiction resulting from failure to attach the judgment sought to be enforced and for uncertainty of the judgment sum.
Issue 1 is resolved in favour of the 1st set of the Respondents.
ISSUE 2
The complaint of the Appellant herein is the failure of the trial Court to pronounce on his issue 3 submitted for determination, to wit:
“Whether the payment of the arrears of salary of the Judgment Creditor ought to be calculated up to the date of reinstatement considering the Orders in the Judgment sought to be enforced”
The Appellant argued that the trial Court’s failure to pronounce on this issue despite the fact that arguments were canvassed on both sides in respect thereof occasioned a miscarriage of justice. He submitted that the Courts are bound to pronounce on every issue submitted before it for adjudication, more so when the resolution of that issue will help in the just determination of the case. He cited: Eghareva v. Osagie (2010) All FWLR (Pt. 573) 1255.
He urged the Court to resolve the issue in favour of the Appellant.
In response, the 1st set of Respondents submitted that the trial Court’s failure to pronounce on the purported additional issue 3 raised by the Appellant did not occasion miscarriage of justice against the Appellant. They added that, it is settled law that when issue placed before the Court does not necessarily determine the real issue between the parties or the issues between the parties can be determined by a single issue, non reference to it is not a denial of fair hearing and does not occasion a miscarriage of justice. He relied on: F.M.H. V. C.S.A Ltd. (2009) 9 NWLR (Pt. 1145) 193 at 222; Abiola & Sons B. Co. Ltd. V. 7Up Bottling Co. Ltd. (2012) 15 NWLR (Pt. 1322) 184.
He urged the Court to resolve the issue against the Appellant.
RESOLUTION OF ISSUE 2
The trial Court as well as this Court are not final Courts and as such, are duty bound to pronounce on all issues submitted to it for adjudication unless for some special circumstances which includes where the issue is mere hypothetical or academic, not crucial as to lead to a miscarriage of justice, an order for retrial is necessary, the judgment is considered a nullity in which case there will be no point to decide on all the issues which could arise at retrial or in a fresh action as the case may be; subsumable under another one or where the Court framed its own issue that encompassed all the issues placed before it. See: Uzuda V. Ebigah (2009) 15 NWLR (Pt. 1169) 1 S.C.; (2009) LPELR – 3458 (S.C); Brawal Shipping V. Onwubiko Co. (2000) 6 SCNJ 509.
From the above, it is obvious that there has been a major shift from the general principle of law that the mere fact that an intermediate Court fails to pronounce on an issue vitiates the decision. It is settled law that when an issue placed before the Court is not crucial or material and as such does not necessarily determine the real issue between the parties, non reference or pronouncement on it by the Court does not prima facie amount to denial of fair hearing nor adjudged to have occasioned a miscarriage of justice. See: F.M.H. V. C.S.A Ltd. (2009) 9 NWLR (Pt. 1145) 193 at 222 paras D – E where Musdapher CJN as he then was, opined:
“In my respective view, it does not constitute a denial of fair hearing or occasion miscarriage of justice merely because a trial or appellate Court did not consider a particular issue or issues for consideration in the determination of a case”.
Relevant to the resolution of this issue therefore is whether the failure of the learned trial Judge to pronounce on the issue occasioned a miscarriage of justice for the reason that the said issue was crucial to the determination of the dispute between the parties. The application which led to this appeal was for an order to set aside Order nisi earlier made by the court, it was not a Garnishee proceedings on the merit. The narrow issue was whether the trial Court had the power to have granted the said Order nisi – when it did not have jurisdiction and whether the order was not bound to be set aside. The 1st set of Respondents contended that because the judgment sum was uncertain and the judgment sought to be enforced was not attached to the motion ex-parte; adequate material was not placed before the trial court to robe it with the jurisdiction to grant the Order nisi. The issue as to whether or not the payment of arrears of salary of the Judgment creditor ought to be calculated up to the date of reinstatement considering the order in the judgment sought to be enforced to my mind, had no bearing to the determination of whether the non attachment of the judgment sought to be enforced did not rob the trial court of the exercise of its jurisdiction to grant the exparte application to wit; order nisi. The said issue not being relevant or crucial to the determination of the application to set aside the order nisi earlier granted; the refusal, neglect or omission of the trial Court to pronounce on it did not amount to breach of fair hearing neither did it occasion a miscarriage of justice.
Again since the learned trial Judge had held that the court lacked jurisdiction to have granted the order nisi which decision I have upheld, the court was right to have set aside the order nisi as the non resolution of other issues in the circumstance of the case did not occasion a miscarriage of justice.
I resolve issue 2 in favour of the 1st set of Respondents.
From the totality of my resolutions above, the appeal without any wedge fails and is accordingly dismissed. I uphold the decision setting aside the Order nisi made on 29th October, 2013 by the High Court of Kwara State.
I award a cost of N20,000.00 against the Appellant in favour of the 1st and 2nd Respondents
MOHAMMED LADAN TSAMIYA, J.C.A.: I am in total agreement with the judgment of my learned brother, UCHECHUKWU ONYEMENAM, JCA that the appeal be dismissed. It is hereby dismissed. I abide by the order as to cost.
MUSA HASSAN ALKALI, J.C.A.: I had the opportunity of reading in draft the well written judgment just delivered by my learned brother, Uchechukwu Onyemenam, JCA.
I certainly agree and uphold the decision setting aside the order nisi made on 29th October, 2013 by the High court of Justice Kwara State. Appeal is hereby dismissed.
Appearances
Y.A. ALAJO with L.O. BELLOFor Appellant
AND
DR. J.O. OLATOKE with Mrs. K.A. AMINU, T.O. ADEBOYE for 1st & 2nd
Judgment Debtors/ the Respondent
ADEDAYO ADEDIJI with E.T. ADEYEMI for 3rd Garnishee/Respondent
PRINCE J.O. IJAODOLA (JNR.) for 4th Garnishee/RespondentFor Respondent
