UNITED BANK OF AFRICA PLC v. EMEKA ONUOHA & ORS
(2014)LCN/7559(CA)
In The Court of Appeal of Nigeria
On Friday, the 21st day of November, 2014
CA/OW/44A/2010
RATIO
APPEAL; NOTICE OF PRELIMINARY OBJECTION IN AN APPEAL; WHETHER THE COURT MUST DECIDE FIRST ON PRELIMINARY OBJECTION
It is now beyond any argument that this court must decide first on the Notice of Preliminary Objection filed by the Respondents. The reason is not farfetched. The aim and objective of an objector is to bring to an abrupt end the live in an appeal or action either due to an obvious defect incompetence, jurisdictional impediment or an intervening event militating against the hearing of a suit or an appeal. See:
- CHIEF U. M. EFET VS. INEC & ORS. (2011) 3 SCM 63 at 76I to 77A PER I. T. MUHAMMED JSC.
- YARO VS. ARENA CONSTRUCTION LTD. & ORS. 6 SCNJ 418.
- OLUSEGUN ADEBAYO ONI & ANOR. VS. DR. J. O. FAYEMI & ORS. (2013) 12 NWLR (PART 13 1369) 421 at 447 F. PER NGWUTA, JSC.The Learned Justice of Supreme Court maintained the same stance in the case of OLUWAROTIMI O. AKEREDOLU VS. DR. R. O. MIMIKO & ORS. (2014) 1 NWLR (PART 1388) 402 at 432H – 433A as follows:
“A Preliminary Objection is a pre-emptive strike aimed at scuttling the entire appeal in limine. If the objection is raised against particular grounds of appeal as in the case before us, the intention is to prevent the court from considering the issues raised from the grounds objected to in the determination of the appeal. Because of its nature and intendment, a preliminary objection, whether it is directed at the entire appeal or some grounds of appeal, is determined before any further action is taken on the appeal, and I will now determine the objection on the argument offered by the counsel for the parties.” per. PETER OLABISI IGE, J.C.A.
APPEAL: LEAVE OF COURT; THE PROVISION OF THE CONSTITUTION ON WHEN IT IS NECESSARY FOR AN AGGRIEVED PARTY TO SEEK THE LEAVE OF THE LOWER AND APPELLATE COURT TO APPEAL AND THE COURT OF APPEAL PROVISION ON THE CONSEQUENCE OF FAILURE TO SEEK THE LEAVE OF COURT WHEN REQUIRED
The question now is when is it necessary to seek the Leave of Lower Court and this Court to enable an aggrieved party appeal the decision or order of Lower Court? Recourse must be had to the provisions of Sections 241 and 242 of the 1999 Constitution of the Federal Republic of Nigeria as amended or altered. They provide, as follows:-
“241 – (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases.
(a) final decisions in any civil or criminal proceedings before the Federal High Court sitting at first instance;
(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;
(c) decisions in any civil or criminal proceedings on questions at to the interpretation or application of this Constitution;
(d) decision in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person;
(e) decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;
(f) decisions made or given by the Federal High Court or a High Court-
(i) where the liberty of a person or the custody of an infant is concerned,
(ii) where an injunction or the appointment of a receiver is granted or refused,
(iii) in the case of a decision determining the case a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise,
(iv) in the case of a decree nisi in a matrimonial cause or a decision in any admiralty action determining liability, and
(v) in such other cases as my be prescribed by any law in force in Nigeria.
(2) Nothing in this section shall confer any right of appeal-
(a) from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action;
(b) from an order absolute for the dissolution or nullity of marriage in favour of any party who having had time and opportunity to appeal from the decree nisi on which the order was founded, has not appealed from that decree nisi; and
(c) without the leave of the Federal High Court or a HIGH Court or of the Court of Appeal, from a decision of the Federal High Court or HIGH Court made with the consent of the parties or as to costs only.
242 – (1) Subject to the provisions of section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.”
It means that appeal not falling in the enumerated rights of appeal as of right must be with Leave.
It is also of importance to bring in the provisions Section 14(1)1 of the Court of Appeal Act which provides as follows:-
“14(1) where, in the exercise by the High Court of a state or, as the as may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that Court or of the Court of Appeal, lie to the Court of appeal, but no appeal shall lie from any order made exparte, or by consent of the parties, or relating only to costs.”
It is thus clear that where leave is required failure to obtain leave is fatal to the appeal. It is a condition precedent to exercise of jurisdiction by the Court of Appeal. See; G.N NWAOLISAH VS PASCHAL NWABUFOH (2011) 14 NWLR (PART 1268) 600 at 624 (G-H 625A per Adekeye, JSC who held:
Leave of Court where it is required is a condition precedent to the exercise of the right to appeal. The failure to obtain leave where it is required will render any appeal filed incompetent as no jurisdiction can b e conferred on the appellate court. Hence an appeal from the Court of appeal to the Supreme Court on grounds other than of law alone is incompetent and invalid unless leave of either the Court of Appeal or the Supreme Court is first sought and obtained. Nalsa Team Associates vs N.N.P.C. (1991) 8 NWLR (Pt.212) pg. 652; S.P.D.C. (Nig.) Ltd. V. Katad (Nig.) Ltd. (2006) 1 NWLR (Pt.960) pg. 198; Nyambi vs Osadim (1997) 2 NWLR (Pt. 485) pg. 1; Olanrewaju v. Ogunleye (1997) 3 NWLR (Pt. 485) pg. 12.” See also CHIEF I EMENIKE V PDP & ORS (2012) 12 NWLR (PART 1315) 556 AT 595 E-F per MOHAMMED JSC. per. PETER OLABISI IGE, J.C.A.
COURT: GRANT OF ADJOURNMENT; WHETHER THE GRANT OF ADJOURNMENT IS AT THE DISCRETION OF THE COURT
It is true that refusal to grant an adjournment sought by a party to a proceeding is an exercise of discretion on the part of the trial Judge. It also has to do with fair hearing. Thus where a ground of appeal read along with its particulars coupled with the order or decision complained of breach of right to fair hearing in the course of a Judicial deliberation, the Appellant does not in my view require leave of Court to enable him appeal the decision or the Order. per. PETER OLABISI IGE, J.C.A.
PRACTICE AND PROCEDURE: GARNISHEE ORDER; WHETHER A GARNISHEE ORDER MADE ABSOLUTE IS FINAL
In any event the Garnishee Order absolute made by the Learned trial Judge put an end to the Garnishee proceedings. The Garnishee Order absolute wears the toga of finality once made. I am of the settled view that Garnishee Order absolute made by the Lower Court is not an Interlocutory Order. The Appellant can therefore appeal as of right.
See: UNION BANK OF NIGERIA PLC VS. BONEY MARCUS IND. LTD. & ORS. 2005 13 NWLR (PART 943) 654 at 666 E – H to 667 per AKINTAN, JSC who said:
“Applications for garnishee proceedings are made to the Court by the judgment creditor and the orders of the Court usually come in two steps. The first is a garnishee order nisi. Nisi is a Norman – French word and it means “Unless”. It is therefore an order made, at that stage, that the sum covered by the application be paid into Court or to the judgment creditor within a stated time unless there is some sufficient reason why the party on whom the order is directed is given why the payment ordered should not be made. If no sufficient reason appears, the garnishee order is then made absolute and that ends the matter in that the party against whom the order absolute is made is liable to pay the amount specified in the order to the judgment creditor. The Court thereafter becomes functus officio as far as that matter is concerned in that the Judge who decided the matter is precluded from again considering the matter even if new evidence or argument are presented to him. See Choice Investments Ltd. v. Jeromnimon (Midland Bank Ltd., Garnishee) (1981) 1 ALL ER 225 at 328; and Words & Phrases Legally. Defined, Vol. 2 page 301. per. PETER OLABISI IGE, J.C.A.
APPEAL: GROUND OF APPEAL: WHETHER GROUND OF APPEAL MUST BE AGAINST THE RATIO DECIDENDI OF A JUDGEMENT
It is trite Law that grounds of appeal must arise or flow from or relate to Judgment, decision or Ruling of the Court being appealed. It must be against the ratio decidendi of a Judgment or decision of the Court. Any ground of Appeal which does not arise or flow from the nucleus of the decision appealed against is incompetent. See; C. P. C. VS. INEC & ORS. (2011) 18 NWLR (PART 1279) 493 at 532H per ADEKEYE, JSC, who said:
“Any grounds of appeal which do not arise from the ratio of the Judgment appealed against equally cannot stand for reason of incompetency” per. PETER OLABISI IGE, J.C.A.
CONSTITUTIONAL LAW: FUNDAMENTAL RIGHT TO FAIR HEARING; THE PROVISION OF THE CONSTITUTION ON FAIR HEARING
By Section 36 of the 1999 Constitution as amended a person is entitled to fair hearing within a reasonable time by a Court or other tribunal in the determination of his civil rights and obligations including any question or determination of his civil rights and obligations including any question or determination by or against any government or authority.
The provisions of the Constitution just alluded to ensure that the trial of an action is seen to be fair and just by all reasonable standard. Meanings have been given to “fair hearing” and reasonable time. See the case of R. ARIORI & ORS. V. MURAINO B. O. ELEMO & ORS. (1983) 1 SC 13 at 23 – 24 per OBASEKI JSC who said:
“The meaning of “fair hearing” and “reasonable time” are not given in the 1963 Constitution nor in our new 1979 Constitution but they have however received judicial interpretation. In my view “fair hearing within a reasonable time’ accords with the demands of justice and a waiver of this right amounts to a waiver of justice. Hearing has been defined in the pocket Law Lexicon 8th Ed. By A. W. Motion as “the trial of a suit” trial on the other hand is defined in the same pocket Law Lexicon as “the hearing of a cause, civil or criminal, by a competent tribunal, the decision of the issues of law or fact in action. It may be by a Judge or Judges with or without jury or assessors. Fair hearing, therefore, must mean a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties to the cause.”Reasonable time”, must mean the period of time which, in the search for justice, does not wear out the parties and their witnesses and which is required to ensure that justice is not only done but appears to reasonable persons to be done”. Underlined mine. This settled or avowed position of the law concerning fair hearing was reiterated recently in the case of CHIEF J. L. E. DUKE VS. GOVERNMENT OF CROSS RIVER STATE & ORS. (2013) 8 NWLR (PART 1356) 347 at 366 B – C where GALADIMA J.S.C. who delivered the leading judgment said: “It now remains for me to consider whether the appellant was given a fair hearing before issuance of exhibit 3 of the 2nd Respondent. By the term “fair hearing” within the con of Section 36(1) of the 1999 Constitution is that a trial ought to be conducted in accordance with all legal norms designed to ensure that justice is done at all cost to all parties. The principle of fair hearing is that both sides must be given an opportunity to present their respective cases. It implies that each side has the right to know what case is being made against it and be given ample opportunity to react or respond thereto.” See also: NICHOLAS C. UKACHUKWU VS. PDP & ORS. (2014) 2 SCM 202 at 223 – 224 Per KEKERE – EKUN, JSC. per. PETER OLABISI IGE, J.C.A.
JUSTICES
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
FREDRICK O. OHO Justice of The Court of Appeal of Nigeria
Between
UNITED BANK OF AFRICA PLC – Appellant(s)
AND
1. EMEKA ONUOHA
2. CHRISTIAN NZE
3. CHRISTIAN OPARA UGO
4. VERONICA ECHEFU – Respondent(s)
PETER OLABISI IGE, J.C.A.(Delivering the Leading Judgment): This is an appeal against the decision of the Imo State High Court contained in the Ruling of Honourable Justice A. O. H. UKACHUKWU delivered on 22nd day of November, 2007.
The Respondents who were Plaintiffs/Judgment Creditors at the Lower Court got judgment in the sum of N20,020,247.80 (Twenty Million, Twenty Thousand, Two Hundred and Forty Seven Thousand, Eighty Kobo), against the Defendants in the suit viz:
(a) CHAIRMAN, OWERRI MUNICIPAL COUNCIL and
(b) OWERRI MUNICIPAL COUNCIL.
In their bid to enforce the judgment given in their favour the Respondents initiated garnishee proceedings against three Banks namely:
1. OCEANIC BANK INT. (NIG) LTD.
2. ZENITH BANK PLC and
3. UNITED BANK FOR AFRICA PLC who is now the Appellant in this appeal.
Order Nisi was made in favour of the Respondents on 26th day of February, 2007 attaching the accounts of the Defendants/Judgment Debtors in the said Banks. After the consideration of the Affidavits filed by the Garnishees and submissions of their Learned Counsel on the matter, UKACHUKWU, J. said and ruled concerning the Appellant thus;
“The 3rd Garnishee – The United Bank for Africa filed an 8 paragraphs affidavit sworn to by Ikechukwu Ejekwu, Solicitor in the Chambers of C. O. Ahumibe and Company. It averred that the 2nd Defendant/Judgment Debtor and not the 1st Defendant/Debtor is a customer of the 3rd Garnishee Bank’s branches at the Douglas Road and Mbari Branches where it maintain Account Nos. 024-100600-00-0-37 respectively. Both Accounts had a total credit balance of N630,689.15 (six hundred and thirty thousand, six hundred and eighty-nine naira fifteen kobo).
Re-acting to the argument of counsel to the applicants that failure to exhibit the Statement of Account with the branches showed that the 3rd Garnishee had not made any of full disclosure as required to warrant the refusal of the Order absolute, Mr. Young Ukaegbu argued that the Bank – Customer relationship was based on confidentiality. It would therefore be improper for the 3rd Garnishee to exhibit the Statement of Accounts of the said Customer.”
See pages 154 and 155 of the record. And on page 157 to 158 of the record the learned trial Judge said:
“The 3rd Garnishee – the United Bank For Africa PLC merely disclosed that the 2nd Judgment Debtor had a total Credit balance of N630,689.15 (Six Hundred and Thirty Thousand, Six Hundred and Eighty-Nine Naira, Fifteen Kobo) in both branches of the Bank. They would not Exhibit 5 the statements of the accounts as, according to the counsel it would be improper to do so.
The counsel for the Judgment Debtors urged the court to refuse the application which she considered to be an abuse of the Court’s process. According to her, the agreement of the parties for installment payment which was later made the Judgment of the Court was still valid at the time of the Garnishee Order Nisi. This submission of counsel did not appear helpful as the issues raised therein were addressed in the application of the Judgment Creditor for the Garnishee Order.
In sum my view is that none of the Garnishee Banks adduced satisfactory reasons to enable this court refuse the Order.
The Garnishee Order Nisi made by this court on the Oceanic Bank PLC, Zenith Bank PLC and United Bank For Africa PLC on 26th February, 2007 is therefore hereby made absolute.
HON. JUSTICE A. O. UKACHUKWU,
JUDGE.”
The Appellant thereafter made attempts to set aside the Garnishee Order absolute including the filing of Motion ON NOTICE dated 16th day of May, 2007 seeking to have the Garnishee Order absolute set aside. The body of the Motion reads:
MOTION ON NOTICE
PURSUANT TO SECTION 83(1), 87 SHERIFFS AND CIVIL PROCESS. ACT CAP. 407 LFN ORDER IV RULE 1 (2) SHERIFFS AND CIVIL PROCESS RULES INHERENT JURISDICTION OF COURT
TAKE NOTICE that this Honourable Court will be moved on …. the…… day of …………..2007 at the hour of 9’0Clock in the forenoon or so soon thereafter as Applicant or Counsel on her behalf may be heard praying for an order of court.
1. Setting Aside the Writ of Execution dated 9th day of May 2007 and served on the Applicant on 16/5/2007.
2. Varying or Setting Aside the Order absolute made against the 3rd Garnishee this is to say UNITED BANK FOR AFRICA Plc.
3. Discharging or striking out the 3rd Garnishee is Garnishee in this proceedings upon payment of the sum of N630,689.15.
TAKE FURTHER NOTICE that the grounds upon which is application is brought are as follows:
i. The Writ of Execution is irregular and premature.
ii. The Garnishee Order Absolute was made in complete disregard of an affidavit stating full extent of liability of the Applicant to the judgment debtor.
iii. The order Nisi was obtained by mistake or misrepresentation as the amount due and in favour of the judgment creditor is not the sum of N20,020,247.80.
iv. The 3rd Garnishee Applicant has paid into court in favour of the judgment creditor the sum of N630,689.15 being the liability of the judgment debtor on the service of Order Nisi.
AND for such further order(s) the Honourable Court may deem fit and proper in the circumstance.”
From the date on the Affidavit in support which is 6th August 2007 one can infer that the Motion was filed on 6th August, 2007.
The said Motion came up for hearing on 22nd day of November, 2007 but the Appellant’s Learned Counsel was absent and there was no officer of Appellant in Court. The following emanated from the proceedings of 22nd day of November, 2007 viz:
“IN THE HIGH COURT OF IMO STATE OF NIGERIA
IN THE HIGH COURT OF OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP HON. JUSTICE A. O. H. UKACHUKWU
ON THURSDAY 22ND DAY OF NOVEMBER, 2007.
BETWEEN:
HOW/214/2004
1. EMEKA ONUOHA
2. CHRISTIAN NZE
3. CHRISTIAN OPARAUGO
4. VERONICA ECHEFU
AND
1. CHAIRMAN,OWERRI MUNICIPAL COUNCIL
2. OWERRI MUNICIPAL COUNCIL
Plaintiffs present.
Defendants absent.
H.N.G. Amadi for Judgment Creditor/Respondents.
No Counsel for Defendant/Judgment Debtor/Applicant.
Mr. Amadi informs the court that there is a Motion by 3rd Garnishee UBA for hearing today.
Both the applicants’ and counsel are absent.
Urges the court to dismiss the application on further grounds.
1. The same Motion by applicant was struck out on 24th July, 2007 for want of prosecution.
2. They have again brought same Motion and again are not here to move it.
3. The prayer in the application is as good as asking this court to sit on appeal over its decision.
4. The defendant particularly 1st defendant has done nothing to liquidate the Judgment Debtor of N20,020,247.08 (Twenty million, Twenty Thousand, Two Hundred and Forty-Seven Naira, Eight Kobo).
5. The purpose of the application is to stay the Judgment Creditor from reaping the fruit of its Judgment.
Court: The court has just finished recording the submissions of counsel for the Judgment Creditor/Respondent when a letter for adjournment by applicant’s counsel is appearing at the Imo State Electoral Tribunal.
Apart from the fact that there are four counsel in the Chamber of the Applicant’s counsel as shown in the Headed paper of the counsel, I consider the application as an abuse of the process of court as it merely invites the court to sit on appeal over its Judgment which Judgment the applicant has admittedly obeyed in part.
I shall therefore and do hereby dismiss the application with N5,000.00 cost to plaintiff/respondents.
(SGD)
A. O. H. UKACHUKWU,
JUDGE,
22/11/2007”
The Appellant was aggrieved by the Ruling/Decision of the Court below and filed Notice and ground of Appeal dated 1st of December, 2007 containing three grounds of appeal which are as follows:-
“1. The Lower Court erred in law when it deliberately denied the Appellant fair hearing contrary to the clear provisions of Section 36 of the 1999 Constitution.
PARTICULARS OF ERROR
i. There was evidence that a motion or application to set aside the Garnishee Order absolute and writ of Execution in line with sections 87 and 91 of the Sheriff and Civil Process Act cap 407 was pending as at 22nd day of November 2007.
ii. There was evidence showing that the then Counsel for the Appellant wrote for adjournment indicating that he was in the Governorship/Legislative Election Petition Tribunal Imo State which is of a special nature warranting accelerated hearing.
iii. The trial court in spite of the foregoing refused the application of counsel and failed to give the Appellant an opportunity to be heard on the pending application before foreclosing it.
2. The Lower Court misdirected itself in law when it held that the pending application to set aside the Garnishee order and the writ of execution amounted to an appeal on its judgment.
PARTICULARS OF MISDIRECTION
i. Section 87, 91 and order IV Rule 1 of the Sheriff and Civil Process Act Cap. 407 Laws of the Federation permits the Appellant to apply to set aside a Garnishee Order and the writ of execution in the circumstance prescribed.
ii. The Appellant has in its application shown that such good grounds in law exist to warrant the Lower Court to set aside its order of 7th May 2007 and the writ of execution.
3. The trial Judge was Biased against the Appellant.
PARTICULARS OF BIAS
i. The trial Judge made the order nisi absolute on a disputed amount despite full disclosure, payment and receipt of the sum of N630,689.15 (Six hundred and thirty thousand, six hundred and eighty-nine naira, fifteen kobo) being the sum outstanding in the judgment-debtor’s accounts at its Douglas and Mbari branches in Owerri.
ii. The trial Judge without good reason refused the application for adjournment and refused to give the Appellant another opportunity to argue its application.”
The said Notice and grounds was amended pursuant to the leave of this court granted to the Appellant on 21st day of March, 2012. The Amended Notice and grounds of Appeal now reads:
“AMENDED NOTICE AND GROUNDS OF APPEAL
GROUNDS OF APPEAL
1. The Lower Court erred in law when it deliberately denied the Appellant fair hearing contrary to the clear provisions of section 36 of the 1999 Constitution.
Particulars of Error
i. There was evidence that a motion or application to set aside the Garnishee Order absolute in line with sections 87 and 91 of the Sheriff and Civil Process Act cap 407 was pending as at 22nd day of November 2007.
ii. There was evidence showing that the then Counsel for the Appellant wrote for adjournment indicating that he was in the Governorship/Legislative Election Petition Tribunal Imo State which was of a special nature warranting accelerated hearing.
iii. The trial court in spite of the foregoing refused the application of counsel for adjournment and failed to give the appellant an opportunity to be heard on the pending application before foreclosing it.
2. The Lower Court erred in law when it failed to consider the motion disputing the amount claimed or to set aside the order of the 7th May 2007 which tendered to suggest that a Garnishee is liable for the entire judgment debt of a Defendant.
Particular of Error
i. Section 83 of the Sheriffs & Civil Process Act Cap 407 of the laws of the Federation makes a Garnishee only liable to the Defendant’s money in its possession and not the entire judgment sum.
ii. There was uncontradicted and unchallenged evidence that only the sum of N630,689.15 (Six hundred and thirty thousand, six hundred and eighty-nine naira fifteen kobo) of the Defendant’s money that was in the possession of the Garnishee which sum was disclosed and paid to the Respondent.
iii. The order for the Garnishee absolute was made for the entire sum without deducting the sum already paid and received by the Plaintiffs/Respondent.”
The Appellant filed her Appellant’s Brief of Argument on 1st day of June, 2010. It was dated the 7th day of June, 2010. The said Appellant’s Brief of Argument was deemed properly filed on 21st day of March, 2012. The Appellant distilled two issues from her two grounds of Appeal as follows:
“1. Whether the trial Court by foreclosing the Appellant did not breach the Appellant’s Fundamental Rights to fair hearing as guaranteed under the Constitution of the Federal Republic of Nigeria 1999.
2. Whether the Sheriff and civil process Act Cap 407 Laws of the Federation as it relates to Garnishee proceeding is intended to make a garnishee liable to the Judgment – creditor all the debt due from the Judgment-debtor or only to the extent of the judgment – debtor’s money in the garnishee possession.”
The Respondents filled Notice of Preliminary objection dated 30th day of April, 2012 on 2nd day of May, 2012 couched thus:-
“NOTICE BY PLAINTIFFS/RESPONDENTS OF INTENTION TO RELY UPON PRELIMINARY OBJECTION – ORDER 10 OF THE COURT OF APPEAL RULES 2007
TAKE NOTICE that the Plaintiffs/Respondents herein named intend, at the hearing of this appeal to rely upon the following preliminary objection notice whereof is hereby given to you, viz: That the Court of Appeal lacks jurisdiction to hear this appeal because this appeal is incompetent.
AND TAKE NOTICE that the grounds of the said objection are as follows:
1. Ground 1 of the Appellant’s grounds of appeal (on mixed law and fact) against the interlocutory decision of Justice A. O. H. Ukachukwu of the High Court of Imo State refusing the Appellant’s application for adjournment is wholly incompetent in that the mandatory leave to appeal was not obtained.
2. Ground 2 of the Appellant’s Grounds of Appeal does not arise from the ruling of the 22nd day of November, 2007 appealed against.”
The Respondents also filed their Respondents’ Brief of Argument dated 30th April, 2012 on 2nd day of May, 2012 incorporating therein their arguments on their said Notice of Preliminary objection. The Appeal came up for hearing on 21st day of October, 2014. The Learned Counsel to the Respondent, H. N. G. Amadi Esq. drew the attention of this Court to the aforesaid Notice of Preliminary Objection which was duly moved. He adopted his argument on the objection as argued in paragraph 3 of the Respondents’ Brief Argument and urged the court to uphold the objection.
The Learned Counsel to the Appellant N. H. Nwankwo Esq. relied on the Appellant’s Reply Brief dated 11/10/2012 but filed on 9/11/2012 wherein the Appellant responded to the Respondent’s Arguments on the Notice of Preliminary Objection.
On the main appeal N. H. Nwankwo Esq. for the Appellants adopted the Appellant’s Brief earlier mentioned in urging the Court to allow the Appeal. The Learned Counsel to the Respondents H. N. G. Amadi Esq. also adopted and relied on Respondent’s Brief of Argument in urging the Court to dismiss the appeal.
It is now beyond any argument that this court must decide first on the Notice of Preliminary Objection filed by the Respondents. The reason is not farfetched. The aim and objective of an objector is to bring to an abrupt end the live in an appeal or action either due to an obvious defect incompetence, jurisdictional impediment or an intervening event militating against the hearing of a suit or an appeal. See:
1. CHIEF U. M. EFET VS. INEC & ORS. (2011) 3 SCM 63 at 76I to 77A PER I. T. MUHAMMED JSC.
2. YARO VS. ARENA CONSTRUCTION LTD. & ORS. 6 SCNJ 418.
3. OLUSEGUN ADEBAYO ONI & ANOR. VS. DR. J. O. FAYEMI & ORS. (2013) 12 NWLR (PART 13 1369) 421 at 447 F. PER NGWUTA, JSC.The Learned Justice of Supreme Court maintained the same stance in the case of OLUWAROTIMI O. AKEREDOLU VS. DR. R. O. MIMIKO & ORS. (2014) 1 NWLR (PART 1388) 402 at 432H – 433A as follows:
“A Preliminary Objection is a pre-emptive strike aimed at scuttling the entire appeal in limine. If the objection is raised against particular grounds of appeal as in the case before us, the intention is to prevent the court from considering the issues raised from the grounds objected to in the determination of the appeal. Because of its nature and intendment, a preliminary objection, whether it is directed at the entire appeal or some grounds of appeal, is determined before any further action is taken on the appeal, and I will now determine the objection on the argument offered by the counsel for the parties.”
I am duty bound to do the same to the Preliminary Objection raised by the Respondents herein. See; OWELLE ROCHAS OKOROCHA VS. PEOPLES DEMOCRACTIC PARTY & ORS. (2014) 1 SCM 163 at 785 Per OGUNBIYI, JSC.
I have earlier reproduced the said objection in this judgment. The major attack is that the appeal is incompetent on all grounds.
It is the submission of the Respondents that ground 1 of the grounds of appeal is a question of mixed Law and fact in that the complaint in ground one bordered on refusal of the Learned trial Judge to grant adjournment requested by Appellant’s Learned Counsel on 22nd day of November, 2007. The Learned Counsel therefore submitted that the Appellant requires Leave of the Court to Appeal. He relied on the case of IKWEKI VS. EBELE (2005) 11 N. W. L. R. (PART 936) 397 at 423 per OGUNTADE, JSC. That failure to obtain the Leave of Court before filing ground one of the appeal renders the ground incompetent. He urged this Court to strike out ground one of the Appeal.
The argument of the Learned Counsel to the Respondent on Ground 2 of the Notice and grounds of Appeal of the Appellant is that the ground 2 thereof does not arise from the Ruling of the Court below delivered on 22nd day of November, 2007 and so there could be no appeal in that direction. He submitted that a ground of appeal must relate to the decision being appealed against as it should constitute a challenge to the ratio of the decision. He relied on the cases of:
1. ADDA V. LIMAN (2012) 4 NWLR (PART 1290) 243 and USMAN VS. KADUNA STATE HOUSE OF ASSEMBLY (2007) 11 NWLR (PT. 1044) 148 at 184 per BA’ABA JCA. That ground 2 of the Appellant’s appeal purports the following:
(a) That the Lower Court failed to consider the Appellant’s dispute on the amount claimed or
(b) That the Lower Court failed to set aside the garnishee order absolute made on the 7th day of May, 2007 thus implying that a garnishee is liable for the entire debt of a judgment debtor.
The Respondents submitted that the Learned trial Judge did not consider the merit or demerit of such attack in the order of 7th May, 2007.
That the Court below only said that, it, was being called upon to sit on appeal over its own judgment which the Lower Court said it was not competent to do.
The case of SHUKKA VS. ABUBAKAR (2012) 4 NWLR (PART 120) 497 at 515 – 516 was relied upon.
The Respondents maintained that only two issues could be said to have arisen from the Court’s Order of 22nd day of November 2007 viz:
i. Whether in the circumstances of the case the Court was right to have refused the Appellant’s application for adjournment and
ii. Whether the Honourable Court was right in its finding that the Appellant’s application amounted to inviting the Court to sit on appeal over its own decision.
The Respondents further submitted that at best, the Appellant’s ground 2 is a complaint against garnishee order absolute made by the Lower Court on 7th day of May, 2007. The Court was urged to strike out Ground 2 of the grounds of Appeal.
The Respondents finally on the Notice of Preliminary Objection urged this Court to uphold the objection and strike out the appeal for being incompetent.
In reply to the above submissions the Learned Counsel to the Appellant relied on the Reply to the Respondents’ Preliminary Objection dated 11/10/2012 and filed on 9th day of November 2012 but deemed properly filed on 14th day of December, 2012. N. H. Nwankwo Esq. for the Appellants submitted that an appeal can be as of right in two ways if it is based on a Final Judgment relying on section 241 of the 1999 Constitution. That the Appellant’s appeal is based on both. That the ground of appeal is complaining of a constitutional breach of the Appellant’s right to fair hearing and that it was an issue that arose from the final determination of the matter. That both parties are aware that they are now dealing with the Final Judgment of the Lower Court. That any appeal dealing with a final Judgment requires no Leave. That even if it can be said that there is no final Judgment, the ground having been base on Constitutional provision of fair hearing needs no Leave for filing of the ground one of the appeal herein. He relied on the cases of
1.TOTAL INTERNATIONAL LTD. VS. AWOGRORO (1994) 4 NWLR (PART 89) 435 and
2. LEKWOT VS. JUDICIAL TRIBUNAL (1993) 2 NWLR (PART 276) 410.
Responding to the arguments of the Respondents on ground 2 of the Appeal, the Learned Counsel to the Appellant submitted that the ground arose from the decision of the Learned trial Judge. That the said ground 2 mentioned the Judgment of 7th May, 2007. That is a Final Judgment of the Lower Court. He dwelt on page 152 of the record as showing in the Judgment of the trial Court the relief claimed which was the sum of N20,020,247.80: That at page 157 it acknowledged that Appellant disclosed it had the sum of N630,689.15k and same was paid to the Respondents with proof. That in spite of this disclosure, and the part payment, the Lower Court still made an order absolute for the entire Judgment sum. That on both score the Lower Court was in error. That it ought not to have made the order.
That it is not for the garnishee to volunteer the money of the Judgment debtor in its possession but for the Judgment creditor, in this case the Respondent, to prove to the Court the amount he believes the garnishee has on behalf of the Judgment debtor. He also submitted that issue 2 arose from the Judgment/Ruling of the Court dated 7th May, 2007, if not directly but indirectly. The Appellant relied on the case of OGBUEFI & ORS. VS. ANAMBRA STATE EDUCATION COMMISSION (2011) ALL FWLR (PART 603) 1873 at 1901 – 1902.
The Learned Counsel to the Appellant finally contended that the Appellant’s appeal is right in the ground 2 of the appeal. He urged the Court to dismiss the Preliminary Objection of the Respondents.
The question now is when is it necessary to seek the Leave of Lower Court and this Court to enable an aggrieved party appeal the decision or order of Lower Court? Recourse must be had to the provisions of Sections 241 and 242 of the 1999 Constitution of the Federal Republic of Nigeria as amended or altered. They provide, as follows:-
“241 – (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases.
(a) final decisions in any civil or criminal proceedings before the Federal High Court sitting at first instance;
(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;
(c) decisions in any civil or criminal proceedings on questions at to the interpretation or application of this Constitution;
(d) decision in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person;
(e) decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;
(f) decisions made or given by the Federal High Court or a High Court-
(i) where the liberty of a person or the custody of an infant is concerned,
(ii) where an injunction or the appointment of a receiver is granted or refused,
(iii) in the case of a decision determining the case a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise,
(iv) in the case of a decree nisi in a matrimonial cause or a decision in any admiralty action determining liability, and
(v) in such other cases as my be prescribed by any law in force in Nigeria.
(2) Nothing in this section shall confer any right of appeal-
(a) from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action;
(b) from an order absolute for the dissolution or nullity of marriage in favour of any party who having had time and opportunity to appeal from the decree nisi on which the order was founded, has not appealed from that decree nisi; and
(c) without the leave of the Federal High Court or a HIGH Court or of the Court of Appeal, from a decision of the Federal High Court or HIGH Court made with the consent of the parties or as to costs only.
242 – (1) Subject to the provisions of section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.”
It means that appeal not falling in the enumerated rights of appeal as of right must be with Leave.
It is also of importance to bring in the provisions Section 14(1)1 of the Court of Appeal Act which provides as follows:-
“14(1) where, in the exercise by the High Court of a state or, as the as may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that Court or of the Court of Appeal, lie to the Court of appeal, but no appeal shall lie from any order made exparte, or by consent of the parties, or relating only to costs.”
It is thus clear that where leave is required failure to obtain leave is fatal to the appeal. It is a condition precedent to exercise of jurisdiction by the Court of Appeal. See; G.N NWAOLISAH VS PASCHAL NWABUFOH (2011) 14 NWLR (PART 1268) 600 at 624 (G-H 625A per Adekeye, JSC who held:
Leave of Court where it is required is a condition precedent to the exercise of the right to appeal. The failure to obtain leave where it is required will render any appeal filed incompetent as no jurisdiction can b e conferred on the appellate court. Hence an appeal from the Court of appeal to the Supreme Court on grounds other than of law alone is incompetent and invalid unless leave of either the Court of Appeal or the Supreme Court is first sought and obtained. Nalsa Team Associates vs N.N.P.C. (1991) 8 NWLR (Pt.212) pg. 652; S.P.D.C. (Nig.) Ltd. V. Katad (Nig.) Ltd. (2006) 1 NWLR (Pt.960) pg. 198; Nyambi vs Osadim (1997) 2 NWLR (Pt. 485) pg. 1; Olanrewaju v. Ogunleye (1997) 3 NWLR (Pt. 485) pg. 12.”
See also CHIEF I EMENIKE V PDP & ORS (2012) 12 NWLR (PART 1315) 556 AT 595 E-F per MOHAMMED JSC.
I have in the course of this judgment quoted the two grounds contained in Amended Notice and Grounds of Appeal filed by the Appellant Ground 1 thereof directly complained about the order of the trial Judge made on 22nd day of November, 2007 which the Appellant says is a direct infringement of its right to fair hearing pursuant to Section 36(1) of the 1999 Constitution in that the refusal of the trial Judge to grant her an adjournment amounted to a denial of fair hearing.
It is true that refusal to grant an adjournment sought by a party to a proceeding is an exercise of discretion on the part of the trial Judge. It also has to do with fair hearing. Thus where a ground of appeal read along with its particulars coupled with the order or decision complained of breach of right to fair hearing in the course of a Judicial deliberation, the Appellant does not in my view require leave of Court to enable him appeal the decision or the Order.
The Appellant is complaining that the Lower ought not to have dismissed the application filed to set aside the Lower Court’s Garnishee Order absolute made on 7th May, 2007 having regard to his letter seeking for an adjournment on the ground that the Learned Counsel to the Appellant is appearing before an Election Petition Tribunal. Whether the appeal on that ground will succeed or not is a different kettle of fish. Suffice to say that the first ground of appeal as framed can be conveniently accommodated under the aegis of Section 241(1) (d) of the 1999 Constitution which provides:
“241 – (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:
(a)
(b)
(c)
(d) Decisions in any civil or criminal proceedings on questions
as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person;”
In any event the Garnishee Order absolute made by the Learned trial Judge put an end to the Garnishee proceedings. The Garnishee Order absolute wears the toga of finality once made. I am of the settled view that Garnishee Order absolute made by the Lower Court is not an Interlocutory Order. The Appellant can therefore appeal as of right.
See: UNION BANK OF NIGERIA PLC VS. BONEY MARCUS IND. LTD. & ORS. 2005 13 NWLR (PART 943) 654 at 666 E – H to 667 per AKINTAN, JSC who said:
“Applications for garnishee proceedings are made to the Court by the judgment creditor and the orders of the Court usually come in two steps. The first is a garnishee order nisi. Nisi is a Norman – French word and it means “Unless”. It is therefore an order made, at that stage, that the sum covered by the application be paid into Court or to the judgment creditor within a stated time unless there is some sufficient reason why the party on whom the order is directed is given why the payment ordered should not be made. If no sufficient reason appears, the garnishee order is then made absolute and that ends the matter in that the party against whom the order absolute is made is liable to pay the amount specified in the order to the judgment creditor. The Court thereafter becomes functus officio as far as that matter is concerned in that the Judge who decided the matter is precluded from again considering the matter even if new evidence or argument are presented to him. See Choice Investments Ltd. v. Jeromnimon (Midland Bank Ltd., Garnishee) (1981) 1 ALL ER 225 at 328; and Words & Phrases Legally. Defined, Vol. 2 page 301.
During the period between when the order nisi and the order absolute are made, the matter would still be pending before the Court. In other words, the proceedings would still be at the interlocutory stage. But once the order absolute is made, there would be nothing left before the Court in the matter. The Court has, at that stage, completely determined the matter between the parties as far as the proceedings are concerned. The Court would be functus officio. There would then be nothing left to be determined by the Court. The question of the proceedings, at that stage, being interlocutory would therefore not arise.”
The said ground of appeal deals with whether the Learned trial Judge was in breach of Section 36(1) of the 1999 Constitution. It is not of mixed Law and facts. I hold that ground 1 of the Amended Notice of Appeal is competent or valid.
The Respondents grouse against the second ground of the Amended Notice of Appeal of the Appellant is that it does not arise from the decision of the trial Court dated 22nd day of November, 2007.
It is trite Law that grounds of appeal must arise or flow from or relate to Judgment, decision or Ruling of the Court being appealed. It must be against the ratio decidendi of a Judgment or decision of the Court. Any ground of Appeal which does not arise or flow from the nucleus of the decision appealed against is incompetent. See; C. P. C. VS. INEC & ORS. (2011) 18 NWLR (PART 1279) 493 at 532H per ADEKEYE, JSC, who said:
“Any grounds of appeal which do not arise from the ratio of the Judgment appealed against equally cannot stand for reason of incompetency”
I believe it will not be out of place to reproduce again ground 2 of the Amended Grounds of Appeal without particulars and juxtapose same with the arguments of Learned Counsel to the parties in order to really see or decipher whether the ground flows from the decision of 22nd November 2007 which the entire appeal is targeted. It reads;
“The Lower Court erred in Law when if (sic) failed to consider the motion disputing the amount claimed or to set aside order of the 7th May 2007 which tendered to suggest (sic) that a Garnishee is liable for the entire Judgment debt of the a Defendants” (sic).
I am of the solemn view that the first arm of the second ground of appeal which can best be described as in the alternative has already been integrated into ground one of the Amended Notice and Grounds of Appeal which complained of failure to adjourn the hearing of the Motion filed to set aside, the decision containing the Garnishee Order absolute. That arm of the ground of appeal is a duplication of ground one of the appeal which I have already held as competent.
The second aspect of the second ground of appeal which was made as alternative is a direct challenge to all intent and purposes against the findings or decision of the Learned trial Court making the Garnishee Order Nisi into Garnishee Order absolute.
I fully agree with the Learned Counsel to the Respondents that no such decision was made on 22nd day of November, 2007. The ratio of the decision of 22nd November, 2007 is this:
“Court: the Court has just finished recording the submissions of Counsel for the Judgment Creditor/Respondent when a Letter for adjournment by applicant’s Counsel is appearing at Imo State Electoral Tribunal. Apart from the fact that there are four Counsel in the Chamber of the Applicant’s Counsel as shown in the Headed Paper of the Counsel, I consider the application as an abuse of the process of Court as it merely invites the Court to sit on appeal over its Judgment which Judgment the applicant has admittedly obeyed in part. I shall therefore and do hereby dismiss the application with N5,000 cost to Plaintiffs/Respondents.”
Ground two of the Appellant’s Amended Notice and Grounds of Appeal does not and is not in any way relevant to the findings of the Court below just reproduced above.
Consequently, ground 2 of the Appellants Amended Notice and Grounds of Appeal is hereby struck out for its being incompetent.
Issue No. 2 tied to the just struck out ground two of the aforesaid Amended Notice and Ground of appeal is equally struck out.
What now remains of the amended Notice and Grounds of Appeal is ground 1 thereof. The issue formulated concerning the ground is:
“Whether the trial Court by foreclosing the Appellant did not breach the Appellant’s Fundamental Rights to fair hearing as guaranteed under the Constitution of the Federal Republic of Nigeria 1999”.
The Learned Counsel to the Appellant started of his argument by stating that the issue has to do with whether the Appellants right to fair hearing was breached by the Court below on 22nd day of November 2007 which it refused an adjournment and foreclosed the Appellant from presenting its argument on the pending motion which I have earlier quoted in this Judgment. Appellant answered the question in the affirmative. That the Appellant’s Counsel had written for an adjournment on the ground that he was in the Government/Legislative Election Petition Tribunal Imo State which he, Learned Counsel, considered to be special in nature. That the Learned trial Judge had notice of the application for adjournment and even commented on it. That the Court below notwithstanding its comments on the Letter refused to grant the application for an adjournment sought. He relied on page 324 of the record. He also drew attention to the pending motion contained on pages 284 – 291 of the record. That the Lower Court did not give clear and good reasons for the refusal of the application for an adjournment. The Appellant therefore submitted thus:
“It is our submission that this attitude of the Lower Court amounts to a denial of the opportunity to be heard which offends Section 36 of the 1999 Constitution of the Federal Republic of Nigeria”.
The case of ANPP VS. INEC & ORS. (2005) ALL F. W. L. R. (Pt 254) 971 at 988 was cited in support. That the effect of proceedings conducted in breach of right to fair hearing is a nullity.
He relied on the cases of:
1. CHAIRMAN, ILEMEJE LOCAL GOVERNMENT EKITI STATE VS. OBA J. O. AWOLOLA & ORS. (2005) ALL FWLR (Pt 388) 1057.
That the denial of justice has really inflicted pain and suffering on the Appellant as attempts were made to lock up Appellants two Branches under the pre of Levying execution. He urged this Court to hold that the denial to the Appellant of Constitutional rights to fair hearing under the Constitution consequentially made the proceeding a nullity.
The Learned Counsel to the Respondents conceded that the right to fair hearing is enshrined in the Constitution and that where it is proved to have been breached and decision founded on such breach is liable to be set aside. The Appellant however submitted that fair hearing is not an abstract term available to a party at all times and in all circumstances. Reliance was placed on the decision of this court in the case of OLA TUNBOSUN VS. ANNENIH (2009) 15 NWLR (PART 1165) 560.
The Respondents stated that in the instant case the Appellant had earlier brought a similar application to set aside the order made by the trial High Court on the 7th day of May, 2007. That both Appellant and its Counsel failed to turn upon the date it came up for hearing and the Motion was struck out. That the Appellant chose to file application to set aside Garnishee Order made absolute instead of appealing the order. That the application was struck out on 24th day of July 2007 for want of diligent prosecution as neither the Garnishee nor the Counsel was in Court.
That on the day the second application was to be moved the Appellant and its Solicitor were again absent from Court. That the Court found from the Letter-head by which the Appellant belatedly applied for adjournment that there were four Legal Practitioners’ in the firm and yet none of them was present to argue their own application. That that was the reason the application for adjournment was refused. He relied on the case of SHUKKA VS. ABUBAKAR Supra.
That it was clear that the Appellant merely sought to employ the Judicial processes to delay or deny the Plaintiff/Respondents the enjoyment of the garnishee order absolute they had obtained against Appellant.
The Respondents therefore submitted that from the records, the Appellant’s right to fair hearing was not breached and that the trial court properly exercised its discretion in refusing the application for adjournment based on what the Respondents referred to as the materials before the Court below viz:
(a) The attitude of the Appellant in not appearing on 24/7/07 when the first application was struck out.
(b) The absence of the Appellant and its Counsel on the 22nd day of November, 2007 when appellant’s application was called up for hearing and
(c) The Letter Head of the Appellant’s Counsel showed that there were Lawyers in the Chambers that could have argued the application had they so desired.
By Section 36 of the 1999 Constitution as amended a person is entitled to fair hearing within a reasonable time by a Court or other tribunal in the determination of his civil rights and obligations including any question or determination of his civil rights and obligations including any question or determination by or against any government or authority.
The provisions of the Constitution just alluded to ensure that the trial of an action is seen to be fair and just by all reasonable standard. Meanings have been given to “fair hearing” and reasonable time. See the case of R. ARIORI & ORS. V. MURAINO B. O. ELEMO & ORS. (1983) 1 SC 13 at 23 – 24 per OBASEKI JSC who said:
“The meaning of “fair hearing” and “reasonable time” are not given in the 1963 Constitution nor in our new 1979 Constitution but they have however received judicial interpretation. In my view “fair hearing within a reasonable time’ accords with the demands of justice and a waiver of this right amounts to a waiver of justice. Hearing has been defined in the pocket Law Lexicon 8th Ed. By A. W. Motion as “the trial of a suit” trial on the other hand is defined in the same pocket Law Lexicon as “the hearing of a cause, civil or criminal, by a competent tribunal, the decision of the issues of law or fact in action. It may be by a Judge or Judges with or without jury or assessors. Fair hearing, therefore, must mean a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties to the cause.”Reasonable time”, must mean the period of time which, in the search for justice, does not wear out the parties and their witnesses and which is required to ensure that justice is not only done but appears to reasonable persons to be done”.
Underlined mine.
This settled or avowed position of the law concerning fair hearing was reiterated recently in the case of CHIEF J. L. E. DUKE VS. GOVERNMENT OF CROSS RIVER STATE & ORS. (2013) 8 NWLR (PART 1356) 347 at 366 B – C where GALADIMA J.S.C. who delivered the leading judgment said:
“It now remains for me to consider whether the appellant was given a fair hearing before issuance of exhibit 3 of the 2nd Respondent. By the term “fair hearing” within the con of Section 36(1) of the 1999 Constitution is that a trial ought to be conducted in accordance with all legal norms designed to ensure that justice is done at all cost to all parties. The principle of fair hearing is that both sides must be given an opportunity to present their respective cases. It implies that each side has the right to know what case is being made against it and be given ample opportunity to react or respond thereto.”
See also:
NICHOLAS C. UKACHUKWU VS. PDP & ORS. (2014) 2 SCM 202 at 223 – 224 Per KEKERE – EKUN, JSC.
In matter of a refusal to grant an adjournment by a trial Court the Appellant, in order to succeed on appeal must be able to show that there was a wrongful exercise of discretion on the part of the Learned trial judge to persuade the appellate Court to upturn the decision complained of. This is because an adjournment may be refused or granted at the discretion of the Court. An adjournment is not obtained as a matter of course. The onus is therefore on the appellant in this appeal to satisfy this Court that the trial Court acted on entirely on wrong principle or that the trial Judge took into account irrelevant matters that have worked injustice to the appellant.
See:1. ALSTHOMSA & ANOR. VS. CHIEF OLUSOLA SARAKI (2005) 3 NWLR (PART 911) 208 per AKINTAN JSC.
2. ABIODUN ADENIKE ODUSOTE VS. OLAITAN OLANIJI ODUSOTE (1971) ALL NLR 221 at 225 – 226 per UDO UDOMA, JSC.
I am of the view that the Learned trial Judge was perfectly right in refusing the application for an adjournment. There is evidence on record which the Appellant did not deny that similar application was struck out on 24th day of July, 2007 for want of prosecution.
The only reason given by the Appellant Learned Counsel even as argued in the Appellant’s Brief was based on the fact that Learned Counsel
“Was in the Governorship/Legislative Election Petition Tribunal Imo State which is of a generic nature”
There was no reason offered why any of the Counsel in the Chambers of Appellant’s Learned Counsel could not appear to move or argue the motion filed. There is nothing wrong in a Legal Practitioner appearing in an Election Petition Tribunal. It is in the course of his professional calling. That is an acknowledgment or appreciation of his professional competence by those who engaged his services at the Tribunal.
One is tempted to sound it loud and clear that Legal Practitioners who are briefed to appear before Election Petition Tribunal or other Tribunals or Court will do well to make necessary alternative arrangements for his appearance for his clients before other Courts especially in Courts of superior record. This will forestall unnecessary delays in the hearing of cases or applications that are already matured for hearing which are equally yearning for hearing within a reasonable time. Being before an Election Petition Tribunal is no magic wand that will automatically lead to adjournment of cases in other Courts or Tribunal. This will go a long way in stemming the tide of delay in disposition or hearing of cases in Litigation.
Every application must be considered on its own merit having regard to materials before the Court that is called upon to exercise its discretion one way or the other. The Appellant had been given opportunity of being heard on her application but chose to let it fritter away. The Learned trial Judge considered the Appellant’s application as an abuse of process. The step taken by the Learned trial Judge did not amount to an infringement on Appellant’s right to fair hearing as enshrined in the 1999 Constitution as amended. There was ample opportunity given to the Appellant to prosecute his application.
See 1. NICHOLAS C. UKACHUKWU VS. PDP & ORS. (2014) 2 SCM 202 at 231 A – D where KEKERE – EKUN, JSC said as follows:
“The view expressed by Tobi, JSC in INAKOJU Vs. ADELEKE (2007) 4 NWLR (Pt. 1025) 427 @ 621 – 622 G – A is quite apposite to the facts of this case. His Lordship opined thus:
“I said it in the past and I will say it again that the duty of the Court, trial and appellate, is to create the atmosphere or environment for a fair hearing of a case but it is not the duty of the Court to make sure that a party takes advantage of the atmosphere or environment by involving himself in the fair hearing of the case. A party who refuses or fails to take advantage of the fair hearing process created by the Court cannot turn around to accuse the Court of denying him fair hearing. After all, there is the adage that the best the owner of the horse can do is to take it to the water, he cannot force it to drink the water. The horse has to do that itself and by the act of sipping. If the horse is unwilling to sip, that ends the matter. The horse will not blame anybody for death arising from the lack of water or hydrate”. (Emphasis supplied).”
The facts and circumstances of this case show that there was no denial of the appellant’s right to fair hearing. The Court went over and beyond the call of duty to ensure that justice was done to both sides within a reasonable time. This issue must therefore be and is hereby resolved against the Appellant.
2. INOGHA MFA & ORS. VS. MFA INONGHA & ORS. (2014) 1 SCM 100 at 119 B – G per NGWUTA, JSC who said:
“Also continuous absence of Counsel in a case he is handling as shown in the record of the trial Court amounts to obstruction of the cause of justice and therefore contempt of Court. See; Mckown v. R. (1971) 16 DLR 390; Izuora v. R. (1953) 13 A WACA 313.
When an application for adjournment is unnecessary or not reasonable, the Court may deny same and proceed with the case. See; ACB Ltd. v. Joseph Agunyim (1960) 5 SC 19.
‘The right to fair hearing entrenched in s. 36(1) of the Constitution of the Federal Republic of Nigeria, 1999, in its first pillar of justice is the Audi alteran partem which means “hear the other party”. The Court has no business pursuing a recalcitrant party in order to hear him. All the Court is required to do is to create an enabling environment for the party to present his case and be heard. A party who refuses or fails to take advantage of the fair hearing environment created by the Court cannot accuse the Court of denying him fair trial. See Kwara State Ministry of Health v. M. I. Electrical Enterprises (2011) All FWLR (Pt. 602) 1757.
The process of fair hearing is a two-edged sword and it cuts both ways-Appellants have a right to a fair hearing and fair hearing implies also that the respondent as plaintiff is entitled to have his case determined within a reasonable time. The right of the two parties must be balanced; one cannot be sacrificed to the other without perverting justice. On the facts of this case, I hold that the Appellants could not substantiate their allegation of denial of fair hearing.”
The same is true in this appeal.
In the result the Appellant’s appeal lacks merit and the appeal is hereby dismissed in its entirety. The Respondents are entitled to costs assessed at N30,000.00 (Thirty Thousand Naira).
IGNATIUS IGWE AGUBE, J.C.A.: I have had the advantage of reading in advance the erudite judgment of my learned brother P. O. Ige, JCA. As regards the Preliminary Objection. I have also had the opportunity of a careful assessment the Grounds of Appeal which complain of fair hearing and failure of the trial Court to consider the motion disputing the amount claimed or to set aside the order absolute made on the 7th of May, 2007 and am in complete agreement with the stance of my Lord that they fall within the ambit of Section 241(1)(d) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which provides that appeals shall be as of right on any question as to whether any of the provisions of Chapter iv of the said Constitution has been violated apart from Ground 2 being a final decision of the Lower Court which determined the Garnishee proceedings by its order absolute which is now the subject of Appeal and therefore that Ground can also be accommodated under Section 241(1)(a) of the Constitution. See also Edem v. Akamkpa L.G.A. (2000) 4 NWLR (Pt.651) 70, Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718, Ogbechie v. Onochie (1986) 2 NWLR (Pt.23) 484 and Augustine v. Hogan (2008) 16 NWLR (Pt.1112) 95 111 Paras A.C.
However since it is clear that Ground Two (2) did not arise from the ratio decidendi of the learned trial judge, I also agree that it is incompetent and should be struck out. The law is settled and now elementary that a Ground of Appeal must perforce be predicated on issues duly raised by the parties and decided upon by Court. Thus where as in this case, Ground 2(Two) of the Grounds of Appeal does not arise from the decision of the Court of first instance, an Appellant, in the words of Tobi, J.S.C.; “cannot arrogate any grievance to himself, because in law there is no basis for such grievance.”
See Buhari v. Yusuf (2003) 14 NWLR (Pt.841) 446 at 533 Paras G – H; Amgbare v. Sylva (2009) 1 NWLR (Pt.1121) 1 at 76 – 77, Mercantile Bank (Nig) Plc v. Nwobodo (2005) ALL FWLR (Pt.281) 1640 and Akwa Ibom State v. Power Com. Ltd. (2005) ALL FWLR (Pt.484) at 1566 Paras. B – C.
On the substance of the surviving Ground One (1) of the Appeal which was predicated on fair hearing there is no doubt that by the Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); his right to bring his case before a Court constituted in a manner as to guarantee its impartiality has been entrenched. My Lord has rightly cited the leading authorities both ancient and modern on the vexed and fundamental concept of fair hearing amongst which are Ariori v. Elemo (1983) 1 SC 13 at 23-24 Per Obaseki, JSC, Chief J. L. Duke vs. Government of Cross River State & Ors (2013) 8 NWLR (Pt.1356) 347 at 366 Paras. B – C. Per Galadima, J.S.C. which case emanated from my decision while in the High Court of Cross River State; Nicholas Ukachukwu v. PDP & Ors (2014) 2 SCM 202 at 233 – 224, Per Kekere-Ekun, JSC and the celebrated case, of Inakoju v. Adeleke (2007) 4 NWLR (Pt.1025) 427 at 621 – 622 paras G – A which are quite apposite to this case, in that as Tobi JSC. Would put it in another case, Oguntayo v. Adelaya (2009) 15 NWLR (Pt.1163) 150 at 186 while re-echoing his dictum in the Inakoju v. Adeleke (supra):
“The duty of the Court is to create the environment or atmosphere for the fair hearing of a case. The Court has no duty to force the parties to take advantage of the environment or atmosphere. If they like they can shut themselves out and ignore the environment or atmosphere created. I do not see in this appeal a situation where the learned trial judge denied the respondent fair hearing”.
The above authority, is quite apposite to the situation in the High Court where by the antecedents of this case as fought in the Lower Court, it is clear from the Records that the Appellant’s first Application was earlier struck out on the 24th of April, 2007; on the 22nd day of November, 2007 when the Appellant’s said Application was called but he did not appear on the excuse that he was appearing at the Election Tribunal whereas the Court below upon perusal of the letter headed paper of the learned counsel’s Application for adjournment discovered that there were other lawyers in his Chambers who could have been assigned to do the case but the learned counsel for the Appellant failed and rather abdicated his duty as counsel to give his client effective representation; the Court below whose discretion it was to grant or refuse the Application for adjournment; refused the Application for want of diligent persecution.
As was held in Newswatch Communications Ltd v. Atta (2006) 11 ALL NLR (Pt.1) 211 at 225 Paras. C – D; the trial judge could indulge the Appellant for some time but not for all times. The learned trial judge had the right and duty to withdraw such indulgence at the point the fair hearing principle would have been compromised, compounded or would wreak injustice on the rival party who equally yearned for fair hearing in the judicial process. Thus when it got to that stage and the learned trial judge retraced his step against the Appellant who was afforded an opportunity but out of lethargy or share negligence failed to take advantage thereof, to prosecute this case, he cannot now be heard to complain that he was not given fair hearing.
On the whole, the cases, of Alsthom S. A. & Anor v. Chief Olusola Saraki (2005) 3 NWLR (Pt.911) 208 per Akintan, JSC, Abiodun Adenike v. Olaitan Olaniji Odusote (1971) ALL NLR 221 at 22 – 226 per Udo Udoma, JSC, and above all Inogha Mfa & Ors v. Mfa Inogha & Ors (2014) 1 SCM 100 at 119 B – G, are all on point that the Appellant was not denied any fair hearing as the learned trial judge exercised his discretion judiciously and judicially taking into consideration the surrounding circumstances of the case particularly the antecedents of the conduct of the learned counsel for the Appellant.
Accordingly, I shall also dismiss the Appeal for lacking in merit and abide by the order as to costs as made by my Lord in the lead Judgment.
FREDERICK O. OHO, J.C.A.: I have had the privilege of reading in draft, the judgment just delivered by my learned Brother, P. O. Ige, JCA. I entirely agree with the judgment. The appeal wholly fails and it is accordingly dismissed with costs as assessed in the sum of N30,000.00 in favour of the Respondents.
Appearances
N. H. Nwankwo Esq with U.N. Obinwanne Esq.For Appellant
AND
H.N.G. Amadi Esq with S.D Opara Esq and Mrs A.C. Ahnnor for 1st – 4th Respondents.For Respondent
