NIGERIAN ELECTRICITY REGULATORY COMMISSION v. BARRISTER TOLUWANI YEMI ADEBIYI
(2017)LCN/10225(CA)
In The Court of Appeal of Nigeria
On Monday, the 10th day of July, 2017
CA/L/1158/2015
RATIO
PRELIMINARY OBJECTION: THE ESSENCE OF A PRELIMINARY OBJECTION
My lords, the primary objective of Order 10 Rule 1 of the Court of Appeal Rules 2016 providing for preliminary objection by a Respondent is to attack the competence of an appeal on the basis of it being incompetent. A preliminary objection properly so called is therefore, not an attack merely on the issues in the substantive appeal but against the entire appeal showing why it should not be entertained on the merit by the Court as a result of the incompetence alleged. SeeAlhaja Sanni V. Alhaji Olateju & Ors (2013) LPELR 21377 (CA). See also Okereke & Anor. V. Nze Adiele (2014) LPELR 24103 (CA). PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.
RECORD OF APPEAL: WHETHER THE COURT AS WELL AS THE PARTIES ARE BOUND BY THE RECORD OF APPEAL
In law, both the parties as well as the Court are bound by the record of appeal. See Ndayako V. Mohammed (2006) 17 NWLR (Pt. 1009) 655 @ p. 665, where it was held inter alia thus:
“The Record of Appeal is the final reference of step by step event that took place in the Court. The record of proceedings and the notice of appeal after compilation constitute the record of appeal and this is binding on the court.”
See also Chief Sir Victor Umeh V. Ichie Okuli Jude Ejike (2013) LPELR-23506 (CA); Veepee Ind. Ltd V. Cocoa Ind. Ltd. (2008) NWLR (Pt.1105) 486; Funduk Engr. Ltd. V. McArhhur (1995) 4 NWLR (Pt. 392) 640. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.
CONTEMPT OF COURT: INSTANCES WHERE A PARTY IN DISOBEDIENCE OF AN ORDER MAY BE HEARD
On the issue of contempt raised by the Respondent against the Appellant, which to my mind is clearly misplaced and misconceived, I find that in law a finding of guilt for contempt is not merely arrived at by it being so alleged by a party but by a finding to that effect by a Court of law, yet it is also important to point it out that even where a party is alleged to be in contempt, it does not take away his right to complain and be heard on issue touching on the jurisdiction of the Court that made the order it is alleged to be in contempt. This is so because while the right to be heard is a constitutional requirement, there is no right to be granted a relief claimed unless it was made out. Thus, while a party in alleged contempt is still entitled to be heard, he may upon being heard be refused the reliefs sought by him for being in contempt. In Strabag Const. Ltd. V. Ugwu (2005) 15 NWLR (Pt.949) 606, this Court per Mika’ilu JCA, had extensively considered this issue and held inter alia thus:
“The applicant is in disobedience of the said order. It has been undoubtedly made clear…that a party in disobedience may be heard in any of the following situations: (a) Where the party is seeking for leave to appeal against the order in which he is in contempt; or b) Where the contemnor intends to show that because of procedural irregularities in making the order, it ought not to be sustained or (c) Where the party is challenging the order on the ground of lack of Jurisdiction. (d) Where all that the contemnor is asking is to be heard in respect of matters of defense. None of the above situations operates in this case.” PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.
TECHNICALITIES: THE POSITION OF THE COURT AS REGARDS TECHNICALITIES
See Famfa Oil Ltd. V. AG. of the Federation of Nigeria (2003) 18 NWLR (Pt. 852) 453, where Iguh JSC, had reiterated this principle of law succinctly alia thus:
“Accordingly, Courts of law should not be unduly tied down by technicalities, particularly where no miscarriage of justice would be occasioned. Justice can only be done in substance and not by impeding it with mere technical procedural irregularities that occasion no miscarriage of justice.”
See also Consortium MC. V. NEPA (1992) 6 NWLR (Pt. 246) 132 @p 142; Bello V. A. G. of Oyo State (1986) 6 NWLR (Pt.45) 828; Okonjo V. Dr Odje (1985) 10 SC 267; Falobi V. Falobi (1976) NMLR 169.
My lords, in the due dispensation of justice at this level of the hierarchy of Courts in the land, I would at all times and in all cases cast my lot, when the chips are down, with the doing of substantial justice than allowing mere technicality riding roughshod over and above substantial justice to the parties. In today’s litigation in the Courts, substantial justice is king! I therefore discountenance the preliminary objection which did not even challenge the competence of this appeal and hold that this appeal is competent to be heard and determined on the merit. The contention not to hear it on the merit, going by the feeble and with due deference to the Respondent’s counsel, mostly irrelevant arguments advanced in support of it is but a little trifling in my view. A Court of law, it must be remembered always, does not concern itself so much with trifles when there are weightier matters of substantial justice before it to decide between the parties. See also Nneji V. Chukwu (1988) 1 NWLR (Pt. 81) 84; Jeric Nigeria Ltd. V. Union Bank of Nig. Plc (2000) 5 NWLR (pt. 691) 477; Adegbuyi V. APC & Ors (2013) LPELR 22799 (CA0; Nofia Surakatu V. N.H.D.S Ltd (1981) 4 SC 26; Ojora V. Odunsi (1964) NMLR 12; Onyeama Oke V. Amos Eke & Ors (1982) 12 SC 218. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
Between
NIGERIAN ELECTRICITY REGULATORY COMMISSION Appellant(s)
AND
BARRISTER TOLUWANI YEMI ADEBIYI Respondent(s)
BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Federal High Court, Lagos Judicial Division, Coram: M. B. Idris J., in Suit No: FHC/L/CS/768/2015: Barrister Toluwani Yemi Adebiyi V. Nigerian Electricity Regulatory Commission delivered on 23/7/2015, wherein the Appellant’s Motion on Notice to discharge Ex parte- order of maintenance of status quo mode by the Court below was struck out without hearing it on the merit on the ground that it was filed outside the 7 days as prescribed by Order 26 Rule 11 of the Federal High Court (Civil Procedure) Rules 2009.
The Appellant was dissatisfied with the ruling of the Court below and had promptly appealed against the said ruling vide a Notice of Appeal on three Grounds filed on 3/8/2015 at pages 276 – 280 of the Record of Appeal. The Record of Appeal was transmitted to this Court on 26/10/2015. The Appellant’s Brief was filed on 6/12/2016. The Respondent’s Brief was filed on 9/1/2017. The Appellant’s Reply brief was filed on 20/1/2017.
At the hearing of this appeal on 24/5/2017, Chief A. Idigbe SAN, learned Senior Advocate for the
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Appellant, appearing with P. Edokpayi Esq., and U. Oganwu Esq., adopted the Appellant’s brief and the Appellants Reply brief as their arguments and urged the Court to allow the Appeal and set aside the ruling of Court below. On his part, Toluwani Yemi Adebiyi Esq., learned counsel appearing in person for the Respondent adopted the Respondent’s brief as his arguments and urged the Court to dismiss the Appeal and affirm the ruling of the Court below.
By an Originating Summons filed on 25/5/2015 and subsequently amended, the Respondent as Claimant claimed against the Appellant as Defendant, inter alia the following reliefs, to wit:
1. AN ORDER restraining the Defendant, the distribution companies, their Agents or Servants from foisting further hardship and unjustifiable increase of electricity Tariff on Nigeria Citizens without a meaningful and significant improvement in power supply at least for 18 hours in a day in most Nigeria communities.
2. AN ORDER restraining the Defendant from foisting compulsory service charge on pre-paid meter users, not until.
i. The meters are designed to read charges per second of consumption and not a flat rate
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of services not rendered or power not used, or
ii. Until there is visible efficient and reliable power supply like those of foreign countries where the idea of service charge is speciously borrowed;
3. AN ORDER mandating the Defendant to do the needful and generate more power to meet the electricity use of Nigerians, the needful should include and not limited to a multiple long term financing approach, sourced from the banks, capital market, insurance and other sectors to finance the power sector:
4. AN ORDER mandating the Defendant to make available to all consumers within a reasonable time of maximum of 2 years, prepaid meter as a way to stop the throat-cutting indiscriminate estimated bill and which must be devoid of the arbitrary Service charge, but only chargeable on power consumed.
The Respondent had by a Motion Ex-parte filed on 25/2/2015, sought an ex – parte order of interim injunction against the Appellant to retrain it from foisting further hardship and unjustifiable increase of tariff on Nigerian Citizen in June/July 2015 without a meaningful and significant improvement in power supply pending the determination of the
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substantive suit and also seeking an order granting leave to the Respondent to serve the Appellant with the originating processes outside Lagos at the FCT Abuja. On 28/5/2015, the Court below granted the application for leave to serve the originating process outside Lagos on the Appellant and directed the Respondent to put the Appellant on notice. In the meantime, the Court below ordered that the status quo ante bellum shall be maintained by the parties.
Upon service of the originating processes together with the ex-parte for maintenance of status quo, the Appellant filed on 6/7/2015 a Motion on Notice to set aside and discharge the said ex – parte order on the ground that the Respondent misrepresented material facts and also that the Court below lacked the jurisdiction to entertain the Respondent’s motion ex – parte for being incompetent. On 16/7/2015, the Respondent filed a counter affidavit. Both parties also filed their respective written addresses in support of these processes. On 16/7/2015, the Appellant filed a Motion on Notice for an extension of time to regularize its processes. It would appear that on 21/7/2015, the Court below heard and granted
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the Appellant’s motion for extension of time at pages 239 – 242 of the Record of Appeal. On 21/7/2015, the Court below heard several applications of the parties and raised an issue suo motu on the competence of the Appellant’s Notice of preliminary objection filed outside the 21 days period as prescribed by Order 29 Rule 4 (a) of the Rules of the Court below. Both parties orally addressed the Court below on the issue raised suo motu and in its ruling delivered on 23/7/2015, the Court below held that the Motion on Notice to set aside and discharge the ex – parte order was incompetent and it was consequently struck out. In this appeal, the Appellant is challenging the decision of the Court below striking out the Motion on Notice to discharge the ex – parte order of maintenance of status quo, without deciding it on its merit. See pages 13 -19, 30 – 43, 48 – 59, 90 – 104, 106 – 128, 191 – 199, 230 – 238, 239 – 242, 243 – 262, 263 – 265, 276-280 & 230-238 of the Record of Appeal.
PRELIMINARY OBJECTION
By a Notice of Preliminary Objection incorporated into the Respondent’s brief, the Respondent is objecting to the competence of the appeal on the
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following Grounds, namely:
1. That the Appellant’s Appeal is purposeless and meaningless, a mockery of the Court and rule of law and must definitely fail.
2. There was concealment of vital facts to this matter which had been publicity admitted by the head of the Appellant, same admission which goes to the foundation of the substance of this matter, and where the foundation is faulty, the whole structure must surely collapse.
RESPONDENT’S COUNSEL SUBMISSIONS
The Respondent’s counsel had submitted that the totality of the reliefs sought by the Appellant in the Notice of Appeal filed on 3/8/3015 and their various submissions is to reverse the order of Court below made on 28/5/2015 not to increase electricity tariff until the matter is determined but which order the Appellant had vandalized and flagrantly disobeyed in the most notorious manner contemptuous of the integrity of the Court, through self – help on 1/2/2016 by increasing the electricity tariff and contended that the Appellant having helped itself do not have any business coming to seek the intervention of the Court as doing so by the Court would amount to the Court validating the
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act of self-help born out of insubordination and urged the Court not to lend its aid to such a party to legalize the illegality of disobedience of the order of the Court below. Counsel relied on Governor of Lagos State V. Ojukwu (1986) 1 NWLR (PT.18) 621.
The Respondent’s counsel further submitted that under the rule of law, intimidation from anywhere cannot and must not stop the Court from carrying out its lawful responsibility and contended that the Appellant being a Government agency which engages in selective obedience of which order they should obey now want this Court to come to its aid to legalize its legality having acted in manner inconsistent with the due observance of the rule of law and urged the Court to hold that unless and until the Appellant purges itself by reversing the admitted illegal hike in electricity tariff carried out while the order of the Court below was subsisting, the Appellant is not entitled to any reliefs sought in this Appeal, which is a mockery of the Court, a mockery of the rule of law as well as a slap on the face of the Court. Counsel referred to Section 22 & 123 of the Evidence Act 2011 and relied on Aromolaran V.
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Oladele (1990) 7 NWLR (Pt. 162) 262 @ p.368; Bunge V. Governor of River State (2006) 12 NWLR (Pt. 995) 573 @ pp 599 – 600; Biezan Exclusive Guest House Ltd V. Union Homes, Savings & Loans Ltd (2011) 7 NWLR (Pt. 1246) 246 @ p. 285; See Kamalu V. Umunna (1997) 5 NWLR (pt. 505) 321 @ p. 337.
APPELLANT’S COUNSEL SUBMISSIONS
The Appellant’s counsel had submitted in his reply on points of law that the preliminary objection by the Respondent shows that the Respondent did not properly comprehend the purport of this appeal, which is premised on an affront on the Appellant’s constitutionally recognized right to fair hearing by virtue of the ruling of the Court below summarily striking out the Appellant’s notice of preliminary objection and motion to discharge its ex parte order for maintenance of status quo on the basis that they were in breach of Orders 29 Rule 4 and Order 26 Rule 11 of the Federal High Court Rules, when both applications were grounded on challenge and competence.
?The Appellant’s counsel further submitted that the first ground of the Respondent’s preliminary objection is baseless in that the Appellant’s appeal is not merely
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academic but of practical utilitarian value to the Appellant in the event that this Court finds merit in it and contended that the appeal is highly meritorious and would be of immediate useful value to the Appellant if allowed. Counsel relied on Congress for Progressive Change V. National Electoral Commission & ORS. (2011) LPELR – 8257 (SC).
The Appellant’s counsel further submitted that the issue of contempt does not arise as the Court below had purged the Appellant of all contempt allegations by striking out and setting aside the Form 49 and motion for order of committal filed by the Respondent against the Appellant for being premature and contended that in law the Respondent cannot without any positive order of Court clothe the Appellant with contempt and contended that assuming without conceding that the Appellant was guilty of willful neglect of a valid Court order, the mere fact that the said order is being challenged by the Appellant on Appeal gives the Appellant a right to be heard. Counsel relied on Strabag Const. Ltd. V. Ugwu [2005] 15 NWLR (Pt.949) 606.
On the issue of admission by the Acting Chief Executive of the Appellant, the
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Appellant’s counsel had submitted that it was not borne out by the record of appeal already before the Court, with which both the parties and the Court are bound and contended that in the said record of appeal there is no record of the said public admission by the Acting Chief Executive Officer of the Appellant as falsely alleged by the Respondent. Counsel relied on Ndayako V. Mohammed (2006) 17 NWLR (Pt. 1009) 655 @ p. 665; Chief Sir Victor Umeh V. Ichie Okuli Jude Ejike (2013) LPELR-23506 (CA); Veepee Ind. Ltd V. Cocoa Ind. Ltd. (2008) NWLR (Pt.1105) 486.
?
RESOLUTION OF PRELIMINARY OBJECTION
My lords, the primary objective of Order 10 Rule 1 of the Court of Appeal Rules 2016 providing for preliminary objection by a Respondent is to attack the competence of an appeal on the basis of it being incompetent. A preliminary objection properly so called is therefore, not an attack merely on the issues in the substantive appeal but against the entire appeal showing why it should not be entertained on the merit by the Court as a result of the incompetence alleged. SeeAlhaja Sanni V. Alhaji Olateju & Ors (2013) LPELR 21377 (CA). See also Okereke &
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Anor. V. Nze Adiele (2014) LPELR 24103 (CA).
In the instant appeal, the two grounds of preliminary objection as nebulous as they are do not in any legal manner attack the competence but rather delved into issues touching on the merit or otherwise of the substantive appeal, which by law would be prejudicial to be considered and pronounced upon under a consideration of the preliminary objection even before the merit or otherwise of the appeal is up for consideration. Honestly, I find that the Respondent’s preliminary objection could be anything in law but certainly not a preliminary objection. It is certainly one discussing as it were prematurely the merit or otherwise of the substantive appeal, which certainly is not the purport and objection of preliminary objection properly so called under and by virtue of Order 10 Rule 1 of the Court of Appeal Rules 2016, which succinctly provides as follows:
“A Respondent intending to rely upon a preliminary objection to the hearing of the Appeal, shall give the Appellant three clear days notice thereof before the hearing setting out the grounds of the objection, and shall filed such notice together with twenty
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copies thereof with the Registry within the same time.”
A preliminary objection as the name implied therefore is an objection, not to the merit of the Appeal, but as to why it should not be heard and determined on the merit due to its incompetency on grounds being relied upon by the Respondent. The grounds that the appeal is now purposeless because the Appellant is allegedly guilty of self – help and disobedience of the ex- parte order of the Court below and admission of made ex post facto the ruling appealed against and touching on the merit of the Appeal is in my view and I so hold, certainly not a preliminary objection within the purview of the provisions of Order 10 Rule 1 of the Court of Appeal Rules 2016. At best, they are issues, if they do properly arise, that could be considered and determined in the substantive appeal. I do not see how this Court could without considering the appeal come to the conclusion as urged upon us by the Respondent that it is a mere academic exercise.
I have scanned through the gamut of the Record of Appeal leading to the delivery of the ruling of the Court below appealed against, and I am unable to find any where
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the Chief Executive Officer of the Appellant made the admission as alleged by the Respondent prior to the delivery of the said ruling. It is clearly an ex- post factor allegation, which has no bearing on the competence of this appeal and also being not part of the record of appeal would go to no issue in determining the competence of this appeal. In law, both the parties as well as the Court are bound by the record of appeal. See Ndayako V. Mohammed (2006) 17 NWLR (Pt. 1009) 655 @ p. 665, where it was held inter alia thus:
“The Record of Appeal is the final reference of step by step event that took place in the Court. The record of proceedings and the notice of appeal after compilation constitute the record of appeal and this is binding on the court.”
See also Chief Sir Victor Umeh V. Ichie Okuli Jude Ejike (2013) LPELR-23506 (CA); Veepee Ind. Ltd V. Cocoa Ind. Ltd. (2008) NWLR (Pt.1105) 486; Funduk Engr. Ltd. V. McArhhur (1995) 4 NWLR (Pt. 392) 640.
On the issue of contempt raised by the Respondent against the Appellant, which to my mind is clearly misplaced and misconceived, I find that in law a finding of guilt for contempt is not merely
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arrived at by it being so alleged by a party but by a finding to that effect by a Court of law, yet it is also important to point it out that even where a party is alleged to be in contempt, it does not take away his right to complain and be heard on issue touching on the jurisdiction of the Court that made the order it is alleged to be in contempt. This is so because while the right to be heard is a constitutional requirement, there is no right to be granted a relief claimed unless it was made out. Thus, while a party in alleged contempt is still entitled to be heard, he may upon being heard be refused the reliefs sought by him for being in contempt. In Strabag Const. Ltd. V. Ugwu (2005) 15 NWLR (Pt.949) 606, this Court per Mika’ilu JCA, had extensively considered this issue and held inter alia thus:
“The applicant is in disobedience of the said order. It has been undoubtedly made clear…that a party in disobedience may be heard in any of the following situations: (a) Where the party is seeking for leave to appeal against the order in which he is in contempt; or b) Where the contemnor intends to show that because of procedural irregularities in making
14
the order, it ought not to be sustained or (c) Where the party is challenging the order on the ground of lack of Jurisdiction. (d) Where all that the contemnor is asking is to be heard in respect of matters of defense. None of the above situations operates in this case.”
At any rate, in this era of substantial justice, I do not see any miscarriage of justice occasioned to the Respondent by reason of the complaints raised in the preliminary objection, touching rather on the merit of the substantive appeal, which on its own was even argued so feebly without any legal relevance as a preliminary objection by the Respondent’s counsel. I therefore do not see any real reason in law that would warrant this Court discountenancing the hearing of the Appeal on grounds that are better considered in the con of the substantive appeal and to strike out the appeal without a hearing on the merit as urged upon the Court by the Respondent’s counsel.
See Famfa Oil Ltd. V. AG. of the Federation of Nigeria (2003) 18 NWLR (Pt. 852) 453, where Iguh JSC, had reiterated this principle of law succinctly alia thus:
“Accordingly, Courts of law should not be unduly tied
15
down by technicalities, particularly where no miscarriage of justice would be occasioned. Justice can only be done in substance and not by impeding it with mere technical procedural irregularities that occasion no miscarriage of justice.”
See also Consortium MC. V. NEPA (1992) 6 NWLR (Pt. 246) 132 @p 142; Bello V. A. G. of Oyo State (1986) 6 NWLR (Pt.45) 828; Okonjo V. Dr Odje (1985) 10 SC 267; Falobi V. Falobi (1976) NMLR 169.
My lords, in the due dispensation of justice at this level of the hierarchy of Courts in the land, I would at all times and in all cases cast my lot, when the chips are down, with the doing of substantial justice than allowing mere technicality riding roughshod over and above substantial justice to the parties. In today’s litigation in the Courts, substantial justice is king! I therefore discountenance the preliminary objection which did not even challenge the competence of this appeal and hold that this appeal is competent to be heard and determined on the merit. The contention not to hear it on the merit, going by the feeble and with due deference to the Respondent’s counsel, mostly irrelevant arguments advanced in support
16
of it is but a little trifling in my view. A Court of law, it must be remembered always, does not concern itself so much with trifles when there are weightier matters of substantial justice before it to decide between the parties. See also Nneji V. Chukwu (1988) 1 NWLR (Pt. 81) 84; Jeric Nigeria Ltd. V. Union Bank of Nig. Plc (2000) 5 NWLR (pt. 691) 477; Adegbuyi V. APC & Ors (2013) LPELR 22799 (CA0; Nofia Surakatu V. N.H.D.S Ltd (1981) 4 SC 26; Ojora V. Odunsi (1964) NMLR 12; Onyeama Oke V. Amos Eke & Ors (1982) 12 SC 218.
On the whole therefore, I hold that the Notice of Preliminary Objection not even properly so called lacks merit and is hereby overruled and dismissed, I shall therefore proceed to consider and determine the substantive appeal anon.
ISSUES FOR THE DETERMINATION
In the Appellant’s brief, the following two issues were nominated as arising for determination in this appeal from the three Grounds of Appeal, namely:
1. Whether the Court below erred in law and deprived the Appellant from its constitutional right to fair hearing when it suo motu raised the issue of non – compliance with the Rules of the Federal High
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Court in his ruling and struck out the Appellant’s application to set aside the ex-parte order? (Distilled from grounds 1 and 3).
2. Whether the Court below erred in law when it validated the Respondent’s ex-parte application and failed to resolve the issues formulated by the Appellant for determination in its application? (Distilled from ground 2).
?
In the Respondent’s brief, a sole issue was nominated as arising for determination in this appeal, namely:
“Whether or not the declaration of the Appellant’s Motion on Notice to set aside the ex – parte order as incompetence by the Court below and thereby dismissing same, is wrong and a breach of appellant’s right to fair hearing?”
My lords, I have calmly reviewed the proceedings of the Court below both at the hearing of the Motion on Notice to set aside its ex – parte order and the issue raised suo motu by it on the competence of the Appellant’s Notice of preliminary objection and the resultant ruling delivered on 23/7/2015. I have also carefully gone through the entire provisions of Order 26, particularly 26 (11) of the Rules of the Court below and reviewed the submissions of counsel in their
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respective briefs in the light of the decision of the Court below striking out the Appellant’s Motion on Notice to set aside the ex-parte order for being incompetent, without determining it on the merit and it does appear to me that the sole issue formulated by Respondent best represents the real issue for determination in this Appeal and a consideration of which would, in my view, invariably involve a due consideration of the two issues distilled in the Appellant’s brief. I do hereby set down the sole issue as distilled in the Respondent’s brief as the sole issue for determination in this appeal and shall proceed to consider and resolve same anon!
SOLE ISSUE
“Whether or not the declaration of the Appellant’s Motion on Notice to set aside the ex-parte order as incompetence by the Court below and thereby dismissing same, is wrong and a breach of appellant’s right to fair hearing?”
APPELLANT’S COUNSEL SUBMISSIONS
On his issue one, the Appellant’s counsel had submitted that the sole reason the Appellant’s application was struck out by the Court below was that it was filed out of time and there was no extension of time to regularize the said
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application and contended that while it is true that the application to set aside the ex parte order of the Court below was filed out of time, it is however glaring that an application to regularize the said Motion was filed on the 16/7/2015 and duly granted by the Court below on 21/7/2015 and urged the Court to hold that the Appellant’s application having been regularized it was wrong for the Court below to in its ruling strike out the Appellant’s Motion on Notice to set aside the ex – parte order on the sole ground that it was filed out of time and there was no application to regularize the same as the decision of the Court below is one reached in breach of the Appellant’s right to fair hearing. Counsel relied on the unreported decision of the Supreme Court in Appeal No. SC/74/2014 – FRN V. Okey Nwosu &Ors delivered on 1/7/2016; Amale V. Sokoto Local Government (2012) 5 NWLR (Pt. 1292) 181; Araka V. Ejeagwu (2000) 15 NWLR (Pt 692) 684; Olatunji V. Adisa (1995) 2 NWLR (Pt. 376) 167.
On his issue two, the Appellant’s counsel had submitted that in law the Rules of the Court below permit a party to file an application ex-parte in view of the urgency
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pending the determination of the Motion on Notice but not pending the determination of the Substantive Suit as was claimed in the Respondent’s ex -parte motion at page 30 of the Record of Appeal and contended that the Respondent, having also not filed any Motion on Notice as required of him by the Rules of the Court below, the ex – parte motion filed by the Respondent was incompetent and the ex – parte order predicated thereon even after it has been directed to be converted into a motion on notice amounted to a determination of not just the substantive suit but also of the appeal. Counsel relied on Kotoye V. CBN (1989) All NLR 76.
The Appellant’s counsel further submitted that the sole ground for the refusal to set aside the ex-parte Order that no extension of time was sought and granted was contrary to the proceedings at pages 239 – 242 of the Record of Appeal, where an extension of time was granted to the Appellant on 21/7/2015 and contended that this finding based on an issue raised suo motu by the Court below in its ruling without hearing the Appellant rendered the said decision a nullity being in breach of the Appellant’s right to fair hearing and
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urged the Court to set aside such a null decision reached on an incompetent ex – parte motion of the Respondent in the interest of justice. Counsel relied on the unreported justice of this Court in Appeal No. CA/A/106/2016: Dr. Ikpeazu V. Ekeagbara & 3 Ors delivered on 18/8/2016; Mil. Gov Lagos State V. Adeyiga (2012) 5 NWLR (Pt. 1293) 291.
RESPONDENT’S COUNSEL SUBMISSIONS
The Respondent’s counsel had submitted that the Court below predicated its decision on Order 26 Rule 11 of the Federal High Court Rules, which makes it clear that any party affected by an order of ex-parte and who wishes to discharge or vary same may apply within 7 days to do so and the Court below has the right of discretion to grant or not to grant same and contended that the Respondent’s originating processes were served on the Appellant on 3/6/205, but the Appellant did not fill any response until 6/6/2015, about 33 days after the service, a time well and above the statutory period of 7 days and thus in law rendered incompetent to be heard and determined on the merit and urged the Court to hold that the Appellant’s right to fair hearing was not in any way or manner
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breached by the Court below. Counsel relied on Ariori & Ors V. Muraimo Elemo & Ors (1983) 1 SC 13 @ p.24; ADEBAYO V. TD (Nig) Ltd. (2011) 4 NWLR (Pt. 1238) 493 @ p. 508; Chami V. UBA. Plc (2010) 6 NWLR (Pt. 1191) 1; Ajidahun V. Ajidahun (2000) 4 NWLR (Pt.654) 605 @ p.614; Bill Construction Co. Ltd V. Imani & Sons Ltd/Shell Trustees Ltd. (2006) NWLR (Pt. 1013) 1 @ p. 14; AG Rivers v. Ude (2006) 17 NWLR (Pt. 1008) 436 @p. 456.
The Respondent’s counsel further submitted that in law the rules of fair hearing are only available to and applicable to a party whose case is properly before the Court and not where a party has failed to file his response within the time as prescribed by law, thus failing to satisfy the condition of being heard and contended that a party who has failed/refused/neglected to submit his case for consideration within the time limit cannot complain of a denial of fair hearing as such delay or failure or negligence is tantamount to waiver of his right and the Court which is doing the lawful thing cannot be held responsible. Counsel relied on Zekari V. Alhassan (2002) 52 WRN @ pp. 123 – 125.
?
The Respondent’s counsel also
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submitted that the Court below dismissed the Appellant’s application to set aside the ex – parte order not only because the application was brought outside the 7 days contrary to the rules of the Court below, but also because the appellant’s prayer to discharge the restraining order not to increase tariff readily encroaches on the first relief sought in the substantive suit, which is for an order restraining the Appellant from increasing Tariff until there is significant improvement of power at least 18 hours per day and contended that the first relief will be rendered meaningless and of no effect as the act sought to be checked would have been done since the Court below can no longer order the Appellant not to increase when the increment would have already been effected. Counsel relied on Adamu V. AG. Nasarawa State (2007) 6 NWLR (Pt. 1031) 488; Ndoba (Nig) Ltd V. UBN Plc (2007) 9 NWLR (Pt. 1040) 450; Estisione (Nig) Ltd V. Osun State Government (2006) 14 NWLR (Pt.1000) 391; United Spinners Ltd. V. Chartered Bank Ltd (2001) 14 NWLR (pt. 732) 195 @ p. 220.
The Appellant’s counsel further submitted that notwithstanding that the Court below based its ruling
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on incompetence of the application having been filed over 3 weeks out of time, there is still no way any Court would have at an interlocutory stage prejudice the substantive suit or wrongly make a pronouncement on issue on which the substantive suit depends or that is touching on the substantive suit and contended that Order 26 Rule 12 of the Rules of the Court below is very clear of the duration of an ex parte order for a very short duration of 14 days and urged the Court to hold that the Appellant’s submissions were all based on faulty reasoning, unfair and highly insulting to the integrity of the Court and should be discountenanced and the appeal dismissed with cost of N50, 000, 000.00 against the Appellant.
APPELLANT’S COUNSEL REPLY SUBMISSIONS
The Appellant’s counsel had in his reply on points of law submitted that an issue of jurisdiction can be brought at any time since jurisdiction is fundamental and contended that in law because of the importance of the hallowed issue of jurisdiction, a Court of law faced with a challenge to its jurisdiction is under a duty to settle it one way or another before proceeding to hearing and urged the Court to
25
hold that the view of the Court below that objection as to its jurisdiction was liable to be struck out without being decided one way or another on the basis of breach of its Rules was erroneous in law and perverse and should be discountenanced. Counsel relied on Anachebe v. Ijeoma & Ors (2014) LPELR – 23181(SC); Madukolu & Ors. v. Nkemdilim (1962) 2 All NLR 581; Ishola v. Ajiboye (1994) 6 NWLR (pt. 352) 506;
The Appellant’s counsel further submitted that Order 26 Rule 11 and 29 Rule 1 are discretionary by virtue of the word ‘MAY’ to either deal on the merit with the application OR consolidate hearing of same with the substantive suit provided the mode of commencement of the suit does not require taking of oral evidence and contended that the said provision does not provide that alt objections to the Courts jurisdiction must be consolidated with the hearing of the suit neither did it demand the striking out of a motion challenging the Court’s jurisdiction without considering same on the merits in breach of the Appellant’s right to fair hearing which cannot be said to have been waived in the circumstances of this appeal in which there is a
26
challenge to the jurisdiction of the Court below and urged the Court to hold that the ruling striking out the Appellant’s motion and preliminary objection notwithstanding their merit or otherwise is a nullity as they ought to be heard and determined on its merit and dismissed if lacking in merit. Counsel referred to Order 51 Rule 1 (1) of the Rules of the Court below, Section 36 (1) of the Constitution of Nigeria 1999 as amended and relied on Ugwu & Ors V. PDP & Ors (2013) LPELR – 21356(CA); Governor of Central Bank of Nigeria V. Akingbola (2013) BFLR 158 @ pp. 178 – 179; Nasir V. Civil Service Commission, Kano State (2010) 6 NWLR (Pt. 1190) 253; Adesola V. Abidoye (1999) 14 NWLR (pt. 637) 28; Nalsa & Team Associates v. NNPC (1991) 8 NWLR (Pt.212) 652 @ p. 660; Otapo V. Sunmonu (1987) 2 NWLR (pt. 58) 587; Okoro v. Okoro (1998) 3 NWLR (pt. 540) 65; Mil. Gov Lagos State V. Adeyiga (2012) 5 NWLR (Pt. 1293) 291; Ogundare & Ors V. Alao (2013) LPELR – 21845(CA); Ukachukwu V. PDP & Ors (2014) LPELR-22115 (SC); Tsokwa Motors (Nig) Ltd. V. UBA Plc. (2008) All FWLR (Pt. 403) 1240 @ p. 1255; Adigun V. AG Oyo State (1987) 1 NWLR (Pt.53) 674; Okafor V.
27
AG Anambra State (1991) 3 NWLR (Pt. 200) 59; Leaders & Co. Ltd. V. Bamaiyi (2010) 18 NWLR (Pt. 1225) 329.
RESOLUTION OF ISSUE ONE
On 9/7/2015, the Appellant filed an application seeking the leave of the Court to regularize its Motion on Notice to set aside the ex – parte order filed out of time on 6/7/2015. As could be gleaned from the printed record that application was duly taken and granted by the Court below without even any objection by the Respondent on 21/7/2015 at pages 239 -242 of the Record of Appeal. Curiously, on the date fixed for the hearing of the Appellant’s motion to set aside the ex- parte order of maintenance of status quo, the Court below, perhaps innocently oblivious of its earlier order extending the time within which the Appellant can file its Motion to set aside the ex – parte order, proceeded to raise an issue suo motu on which both parties in fairness to the Court below, and contrary to the vehement contention of the Appellant, addressed the Court below orally on the issue raised suo motu.
My lords, in the litigation process the Court is the impartial arbiter and must at all time hold the balance between the parties
28
in accordance with the law and the rules of the Court. As observed earlier, there was an application duly filed by the Appellant and before the Court below seeking the leave of the Court below to regularize its processes filed out of time, which was heard and granted by the Court below. So, having granted the extension of time to the Appellant and regularised its processes filed out of time, what then in law was the place for the issue still raised suo motu and on which the Court below made a turn round at 360 degrees to hold that the Appellant’s motion was incompetent by reason of it having been filed out of time, when it held inter alia thus:
“I have read the processes filed. Should the ex-parte order of this Court be discharged? Order 26 Rule 11 of the Rules of this Court provide….Again, the order of this Court meant to be set aside or discharged was made on 28/5/2015 and served on the Defendant on 3/6/2015. This application was only filed on the 6/7/2015 outside the 7 days’ period prescribed by the Rules, and there is no relief asking for extension of time. It is clear that this application was filed in breach of the Rules of Court. It is
29
incompetent and it is hereby struck out.” See pages 264-265 of the Record of Appeal.
Meanwhile, in the Appellant’s motion for extension of time filed on 16/7/2015 and granted by the Court below on 16th of July, 2015 and granted by the Court below on the 21/7/2015, the prayers thereon were as follows:
1. AN ORDER extending time within which the Defendant/Applicant will file its Motion dated 3/7/2015 to set aside the Order of the Court of 28/5/2015 and Counter Affidavit dated 3/7/2015 to Motion for Interim Injunction dated 25/5/2015.
2. AN ORDER deeming the already filed and served Motion and Counter Affidavit both dated 3/7/2015 as properly filed and served. See pages 230 – 240 & 239 – 242 of the Record of Appeal.
In the circumstances therefore, short of ascribing it as an oversight, I do not see how the Court below which had earlier regularized the Appellant’s Motion to set aside its ex-parte order will proceed to strike out the same Motion whose filing it has already regularized as being incompetent having been filed out of time. It is simply preposterous! On this score alone, the decision of the Court below striking out the
30
Appellant?s motion seeking to set aside the ex-parte order is one reached in error, even if inadvertently, and is thus liable to be set aside. It has no basis in law. A Court of law which is as well a Court of justice has no business approbating and reprobating. It would certainly loose the confidence of the litigating public if they cannot be sure of what the Court is up to even after making decision in their favour and conveniently or inadvertently forgetting that it had made such order and reversing itself in the same proceedings and worse of it all on an issue raised suo motu by it.
Be that as it may, on the merit of this appeal, assuming but not so deciding that the Appellant did not file any application for extension of time and no such leave was granted to it by the Court below, it does appear to me that the real issue here is how a Court of law should strike a balance between strict adherence and substantial adherence to the Rules of Court in the adjudication processes to the end that justice to the parties according to law is the end result. It is true that the Rules of Court are neither meant to be toyed with nor made for the fun of it.
31
Thus, a party in breach of same is usually required to take steps to regularize his processes or his position within the con of the applicable Rule of Court. Rules of Court are truly hand maids to the Court for the attainment of justice. Thus, they are never to be allowed to become clogs in the wheel of doing expeditious and substantial justice to the parties. It follows therefore whenever it appears to a Court that a slavish adherence to a rule of Court would result in either absurdity or injustice to the parties, the Court is under a duty to rise above such a rule to ensure that the cause and or course of justice is better served without being slaves to such a rule. See Solanke V. Somefun (1974) 1 SC 141 @ p. 148. See also Unilag V. Aigoro (1985) 1 NWLR (Pt; UTC V. Pamotei (1989) 2 NWLR (Pt. 103) 244; Alsthom V. Saraki (2000) FWLR (Pt. 28) 2267.
Now, by Order 26 Rule 11 of the Rules of the Court below it is provided as follows:
“Where an order is made on a Motion ex – parte, any person affected by it may within seven days after service of it, or within such further time as the Court shall allow, apply to the Court by Motion to vary or
32
discharge it; and the Court may, on notice to the party obtaining the order, either refuse to vary or discharge it, or may vary or discharge it with or without imposing terms as to costs or security, or otherwise, as seem just”
However by Order 51(1) (1) of the Rules of the Court below, it is provided as follows:
“Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceeding, there has by reason of anything done or left undone, being failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure maybe treated as an irregularity and if so treated, will not nullify the proceeding, or any document, judgment or order therein.”
My lords, by the above provisions of the Rules of the Court below, it seems very clear to me and I so hold that the requirement of 7 days as prescribed in Order 26 Rule 11 of the Rules of the Court below can be treated as a mere irregularity by virtue of and under the provisions of Order 51(1)(1) of the Rules of the Court below, by which failure as to requirement as to time,
33
including the 7 days as prescribed under Order 26 Rule 11 of the Rules of the Court below is treated as mere irregularity and the remedy is by way of an application to set aside such irregular process as provided in Order 51(2)(1) & (2) of the said Rules, of which there was even no application to such effect by the Respondent before the Court below.
On the facts and circumstances of this appeal therefore, I hold that the filing of the Motion on Notice seeking to discharge the ex – parte order for maintenance of status quo was not rendered incompetent merely because it was filed outside the 7 days period as prescribed by Oder 26 Rule 11 of the Rules of the Court below. In my finding, it ought to have been determined on the merit and not summarily struck out for being-incompetent without a hearing and determination on the merit. This is so because not only is the failure to comply with Order 26 Rule 11 of the Court below is a mere irregularity by virtue of Order 51 (1) (1) of the Rules of the Court below, the issue raised in the Appellant’s Motion on Notice were such as touches on the issue of competence and jurisdiction, which can be raised at any
34
stage of the proceedings and even for the first time on appeal. The decision of the Court below to terminate the Motion on Notice without a hearing and determination on the merit was in my view clearly and indeed an undue reverence for and reliance on technicality by the Court below. There is no doubt that strict adherence to technical justice may still have its adherents and apostles, but the era of technical justice riding roughshod over and above substantial justice is long gone in our Courts, including the Court below. Now, substantial justice is king! I choose to do substantial justice in this appeal to the parties. See ORUOBU V. ANAEKWE (1997) 5 NWLR (Pt. 506) 618; SURAKATU V. NIGERIAN HOUSING DEVELOPMENT SOCIETY LTD (1981) 4 SC 26; ODI V. OSAFILE (1987) 2 NWLR (Pt. 57) 510; DEEN MARK CONSTR. CO LTD V. ABIOLA (2002) 3 NWLR (Pt. 754) 418 @ pp. 449 – 450; DYERIS V. MOBIL OIL NIGERIA LIMITED (2010) 1 NWLR (Pt. 1175) 309; AGU V. NICON INS PLC. (2000) II NWLR (Pt. 677) 187 @ P. 194; REGISTERED TRUSTEES OF THE AIRLINE OPERATORS OF NIGERIA V. NIGERIAN AIR SPACE MANAGEMENT AGENCY (2014) 8 NWLR (PT. 1408) 1 @ pp 30 – 31.
?
My lords, the issue of
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jurisdiction, being an issue of law can be raised at any time and even for the first time on appeal and thus no rules of Court as to time can fetter a party from raising an issue of jurisdiction at any stage of the proceedings that it becomes manifest or apparent. Thus, Order 26(11) of the Rules of the Court below to that extent was timely modified by Order 51(1)(1) of the same Rules which rendered such a failure as to requirement as to time a mere irregularities. The issue of jurisdiction is a question of law and thus cannot be fettered by rules of Court, particularly provisions as to time limitations. See Nasir V. Civil Service Commission, Kano State (2010) 6 N.W.L.R. (Pt. 1190) 253 @ p. 276, where the Supreme Court per Ogbuagu JSC., had succinctly stated inter alia thus:
?In this regard, it is now firmly settled that issue of jurisdiction or competence of a Court to entertain or deal with a matter before it, is very fundamental. It is a point of law and therefore, a rule of Court, cannot dictate when and how, such point of law can be raised. Being fundamental and a threshold issue of jurisdiction, it can be raised at any stage of the proceedings
36
in any Court including this Court. An appellate Court can even raise it suo motu?I need to emphasize as it is also settled that mandatory rules of Court, are not as sacrosanct as mandatory statutory provisions and therefore, a rule of Court, cannot override statutory provisions of the law.”
Earlier in Elabanjo V. Dawodu (2006) 15 NWLR (Pt. 1001) 76 @ p. 115, the Supreme Court had held inter alia thus:
“…the law is trite that an objection that a Court has no jurisdiction to entertain a matter or action is certainly not an ordinary point of law contemplated, under Order 23 Rules 2 and 3 of the Lagos State High Court Civil Procedure Rules.”
My lords, it is only left for me to state that since one of the grounds for the Motion on Notice to discharge the ex – parte order touches on incompetence of the motion ex – parte and lack of jurisdiction by the Court below, the provisions of Order 26 Rule 11 of the Rules of Court below as to time limitation to raise it is of no moment since the issue can even be raised before this Court and even before the Apex Court for the first time. So, if this issue had not raised before the Court below, can Order
37
26 Rule 11 of the Rules of the Court below be used to limit the powers of this Court if the same issue of jurisdiction were to be raised as touching the claims of the Respondent for the first time before this Court long after the 7 days period as prescribed by Order 26 Rule 11 of the Rules of the Court below? I think not! See Nasir V. Civil Service Commission, Kano State (Supra) @ p. 276. See also Petro – Jessica Enterprises Limited V. Leventis Technical Co. Ltd (1992) 5 NWLR (Pt 244) 675; APGA V. Anyanwu (2014) 7 NWLR (pt. 1407) 541; Nwankwo v. Yar’adua (2010) 12 NWLR (Pt. 84) 508.
In coming to the above finding and holding that the Motion on Notice filed by the Appellant seeking to discharge the ex – parte order of maintenance of status quo was competent, I bear in mind that this position of law, that an issue of jurisdiction, being an issue of law, can be raised at any stage and is unaffected by rules of Court as to time limitation, is sacrosanct and understandably so because jurisdiction is a threshold issue and the life blood of every action or cause or matter in the Courts. As such, objections to jurisdiction are to be taken at the earliest
38
opportunity before any steps in the proceedings are taken since where there is no jurisdiction, any proceedings, no matter how were conducted or the resultant decision, no matter how sound, are a nullity. See Petro-Jessica Enterprises Limited V. Leventis Technical Co. Ltd (Supra) @ p. 693, where Belgore, JSC, (as he then was but later CJN) had re-echoed the trite principle of law inter alia thus:
?Jurisdiction is the very basis on which any Tribunal tries a case; it is the lifeline of all trails. A trial without jurisdiction is a nullity…This importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to the Court of Appeal or to this Court; afortiori the Court can suo motu raise it… It is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity.”
In Nasir V. Civil Service Commission, Kano State (Supra) @ p. 253, the Apex Court made it abundantly clear and beyond every doubt that Rules of Court cannot determine when and how an objection to the jurisdiction of a Court may be raised because jurisdiction is a question
39
of law whereas Rules of Court are subsidiary legislations and thus the latter cannot override the former.
My lords, it therefore goes without saying that jurisdiction, being a constitutional issue, and capable of being raised at any stage of proceedings, it will amount to legal injustice and indeed would be somewhat sacrilegious for Rules of Court to prevail over a constitutional issue. The Constitution, through its sacrosanct provisions, is in law the grund norm on which all other laws and rules depend for their validity. Thus, no other law or rule goes inconsistent with the provisions of the Constitution and remains valid. No, it would rather be invalid to the extent of the inconsistency. See Section 1(3) of the Constitution of Nigeria 1999 as amended. See also National Union of Electricity Employees & Anor V. Bureau of Public Enterprises (2010) 7 NWLR (Pt. 1194) 532; Military Governor of Ondo State V. Adewunmi (1988) 3 NWLR (Pt. 82) 1; AG. of Ondo State V. AG. of Federation (2002) 9 NWLR (Pt. 772) 222.
In law therefore, though the Court below has a discretion under Order 26 Rule 11 whether to vary or discharge its ex – parte order or refuse to
40
do so based on the applicable law, but such discretion must be exercised judicially and judiciously according to law on the merit of the application depending on the facts before the Court and in a manner that will not occasion injustice and or a breach of any of the party’s right to fair hearing as otherwise any such wrongful exercise would be liable to be set aside on appeal. See Ajanaku V. Williams (2009) 3 NWLR (Pt. 1129) 617; Nwadiogbu V. AIRBDA (2010) 19 NWLR (Pt. 1226) 364; Erinfolami V. 5 GB (Nig.) Ltd. (2008) 7 NWLR (Pt. 1087) 306; Yakubu V. NITEL Ltd. (2006) 9 NWLR (pt. 985) 367; Savannah Bank (Nig) Plc V. CBN (2007) 8 NWLR (Pt. 1035) 26.
Having therefore dispassionately considered the entirety of the facts and circumstances of this appeal and scrutinizing particularly the processes filed by the parties the proceeding of the Court below and the resultant decision of the Court below, the remaining pertinent question is simply this: On the facts and circumstances of this appeal, did the Court below in its proceedings and ruling as regards the Appellant’s Motion on Notice to set aside or discharge the ex – parte order breached the Appellant’s
41
right to fair hearing as constitutionally guaranteed to it by Section 36(1) of the Constitution of Nigeria 1999 as amended in the determination of its civil rights and obligations before a Court of law?
The right to fair hearing is sacrosanct and cannot therefore be lightly disregarded or discarded by the Court. It is indeed one of the pillars on which the concept of justice and fairness is built. It is what enjoins a Court to hear every applications pending before it, and brought to its attention by the party, before determining the substantive suit. The right to fair hearing encapsulated in the Latin Maxim: “Audi Alteram Partem”, which originated right from Biblical days in the origin of man in the Garden of Eden as recorded in Genesis Chapter 3 verses 9 – 19 of the Holy Book, the Bible, is sacrosanct to any just and fair determination of the rights and obligations of the citizenry in the Courts established by law, such as the Court below. It must therefore, without fail and without any exception be observed by all Courts in the discharge of their adjudication duties. The Court has a duty to hold the balance between the parties quest for justice
42
and thus cannot and should not make it a habit of denying a party of his right to fair hearing as constitutionally guaranteed under Section 36 (1) of the Constitution of Nigeria 1999 (as amended), without first considering the overall interest of justice to the parties at all times in the adjudicatory processes. Thus, whenever there is breach, there are consequences. A breach of the right to fair hearing renders the proceedings of the Court in which it was committed as well all subsequent as well as any resultant decision therein a nullity, notwithstanding how meticulous the proceeding would have been or how sound the resultant decision would have been on the merit. They are all a nullity. See Ekpenetu V. Ofegobi (2012) 15 NWLR (Pt. 1323) 276; Amadi V. INEC (2013) 4 NWLR (Pt. 1345) 595; Ovunwo & Anor. V. Woko & Ors (2011) 17 NWLR (Pt. 1277) 522; Pan African Incorporation & Ors. V. Shoreline Lifeboat Ltd & Anor. (2010) All FWLR (Pt. 524) 56; Action Congress of Nigeria V. Sule Lamido & Ors (2012) 8 NWLR (pt. 1303) 560 @ p. 593; Judicial Service Commission of Cross River State & Anor. V. Dr (Mrs.) Asari Young (2013) 11 NWLR (Pt. 1364) 1.<br< p=””
</br<
43
However, it is the law that an allegation of denial of the right to fair hearing, as grave as it could be and the dire consequences it could have on the proceedings and judgment of a Court if proved, does not operate in a vacuum but must be dependent on the facts and circumstances of each given case. In other words, whether the right to fair hearing was breached or not is a question of facts to be determined squarely on the facts and circumstances placed before the appellate Court since the law is that each case of allegation of breach of the right to fair hearing must be decided on the peculiar facts and circumstances of each case. This is so because fair hearing is primarily a matter of fact. It is only when the facts are ascertained that the law would be applied to the facts so established to see whether or not such established facts constituted a breach of the party’s right to fair hearing. See Newswatch Communications Limited V. Alhaji Ibrahim Atta (2006) 12 NWLR (Pt. 993) 144.
My lords, on the facts and circumstances of this appeal as in the printed record, a party such as the Appellant who had filed Motion on Notice to discharge an ex – parte
44
order it felt aggrieved with on ground touching on the jurisdiction of the Court below, deserved and ought in my finding to have been given a hearing on the merit for whatever it is worth in due deference to its right to fair hearing as guaranteed by Section 36(1) of the Constitution of Nigeria 1999 as amended, by the Court below either before or together with the hearing of the substantive Originating Summons pursuant to Order 29 Rule 1 of the Rules of the Court below, but never to be denied a hearing on the merit at all, no matter how frivolous or mischievous the Court below views it on the ground merely that it was filed outside the 7 days period as allowed by Order 26 Rule 11 of the Rules of the Court below. It appears so obvious to me that the decision of the Court below to strike out in limine, without a hearing and determination on the merit, the Appellant’s Motion on Notice to discharge its ex – parte order, which at any rate by Order 26 Rule 12 (1) & (2) of the said Rules will automatically elapse in 14 days, is one running contrary to and in breach of the Appellant’s right to fair hearing as constitutionally guaranteed it by law. The right to
45
fair hearing of the citizenry in the determination of their civil rights and obligations by Courts and Tribunals and even quasi judicial bodies to ensure that decisions are not reached without a hearing of the citizen is a fundamental one.
In my finding therefore, the failure by the Court below to hear the Motion on Notice and rather striking it out in limine was clearly an injudicious and capricious exercise of discretion by the Court below and which had occasioned a grave denial of the Appellant’s right to fair hearing and thus rendered the ruling striking out the Motion on Notice without a hearing on its merit a nullity. See Ceekay Traders Ltd. V. General Motors Ltd. (1993) 2 NWLR (Pt. 222) 132. See also Macfoy V. UAC Ltd (Supra).
This therefore is indeed the sure fate of the ruling of the Court below reached in flagrant breach and unlawful derogation from the provisions of Section 36 (1) of the Constitution of Nigeria 1999 as amended, which ruling is thus liable to be set aside in its entirety as it cannot in good conscience and with the dictates of the law be allowed to stand. It is indeed a very offensive and arbitrary misuse of discretion by
46
the Court below. It clearly overreached the Appellant for the Court below, without considering the merit of the Motion on Notice to proceed to strike same out and proceeding to hear the Respondent’s Originating Summons and ultimately finding in favour of the Respondent, while the ex – parte order was still hanging on the neck of the Appellant.
I find this to be a clear case of travesty of justice. SeeTunbi V. Pawole (2000) 2 NWLR (Pt. 644) 275 @ p. 288. See also Ogunyade V. Oshunkeye (2007) 15 NWLR (Pt. 1057) 218; GTB Plc. V. Solomon (2016) LPELR – 40342 (CA).
In Newswatch Communication Limited V. Atta (2006) 12 NWLR (Pt. 993) 144 @ p. 151, Niki Tobi JSC (God bless his soul), reiterated the duty of the Court to afford both parties before it their rights to be fairly heard, when he opined inter alia thus:
“The right to be heard is a two edged sword; to the Plaintiff to be heard expeditiously and for the Defendant to avail itself the right, constitutional right, extended to it by the Court to present his side of the case. The constitutionally guaranteed principle of fair hearing is for both parties in the litigation.”
My lords, while it
47
is a truism as it a common parlance clich that ‘justice delayed is denied hence the apt provisions of Order 26 Rule 12 of the Rules of the Court below requiring it to hear and determine an application to discharge its order ex – parte within the 14 days of its life span, yet it must also be remembered too that ‘justice rushed is justice crushed’ and thus it would indeed be a travesty of justice to rush justice in breach of the enshrined constitutional guaranteed right to fair hearing, for parties to be fairly and duly heard before decision affecting their civil rights and obligations are reached by the Court. See Section 36 (1) of the Constitution of Nigeria 1999 (as amended) which provides as follows:
?In the determination of his civil rights and obligation, including any question or determination by or against any Government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
On the strength of all that I have said and held above, perhaps in so many words, and considering the
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issue of jurisdiction raised in the Appellant’s Motion on Notice coupled with the clear provisions of Order 26 Rule 12 (1) & (2) of the Rules of the Court below and the primus place of jurisdiction in our civil jurisprudence, and having found that the refusal to hear and determine the Appellant’s Motion on Notice on the merit and rather striking out same for being incompetent, when it was even in no way under law incompetent, and proceeding to hearing the Originating Summons of the Respondent was a capricious and injudicious exercise of discretion by the Court below and amounted clearly to an infringement of the Appellant’s right to fair hearing, I am of the view that the law should take its course on the entire proceeding and decisions of the Court below subsequent to the flagrant breach of the Appellant’s right to fair hearing. The law is well settled that failure of a Court to observe the right to fair hearing of a party in any proceedings before it, vitiates both the proceedings and the resultant decision of the Court whose proceedings is afflicted by the deadly virus of denial of fair hearing. In law, the principles of fair hearing are not only
49
fundamental to adjudication but are also constitutional requirements which cannot be legally wished away. It is indeed a fundamental right of universal application. See Agbapuonwu v. Agbapuonwu (1991) 1 NWLR (Pt. 165) 33 @ p. 40. See also Agbogu V. Adichie (Supra) @ p. 531; J.O.E. Co. Ltd V. Skye Bank Plc (2009) 6 NWLR (Pt. 1138) @ p. 518; Robert C. Okafor & Ors V. AG and Commissioner for Justice Anambra State (1991) 6 NWLR (PT. 200) 659.
There can be no doubt that fair hearing is in most cases synonymous with fair trial and natural justice, an issue which clearly is at the threshold of our legal system and thus once there has been a denial of fair hearing as guaranteed under Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended, the whole proceedings automatically becomes vitiated. A denial of fair hearing can ensure from the conduct of the Court in the hearing of a case. The true test of fair hearing therefore is the impression of a reasonable person who was present at the trial whether from the observation justice has been done in the case. See Otapo V. Sunmonu (1987) 2 NWLR (Pt.58) 587; Wilson V. AG of Bendel State
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(1985) 1 NWLR (Pt. 4) 572. See also A. U. Amadi V. Thomas Aplin & Co. Ltd (1972) All NLR 413; Mohammed Oladapo Ojengbede V. M.O. Esan & Anor (2001) 18 NWLR (Pt.746) 771.
The right to fair hearing is not a cosmetic right but a fundamental one. Justice rushed is indeed justice crushed even though justice delayed is equally justice denied. In both circumstances therefore, it is the lack of proper balancing by the Court that leads to the injury. Thus, a Court should neither be too slow nor be too fast as being in haste. It must be patient and painstaking while hearing and deciding the rights, obligations and liabilities of the parties before it by scrupulously observing the right to fair hearing of all the parties before it. The law is and has always been, one cannot put something on nothing and expect it to stand. It would definitely collapse. Thus, where the proceedings and ruling of a Court turns out to be or is found to be a nullify that is the end of the matter since nothing worth anything or something can emanate from a nullity. See Macfoy V. UAC Ltd. (1962) 1 AC 100 @ p. 160.
?
In the circumstances of this appeal therefore, and having
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considered the proceedings of the Court below, the Appellant?s Motion on Notice to set aside or discharge the ex-parte order and the ruling of the Court below, the peremptory striking out of the Appellant’s Motion on Notice without hearing it on the merit on the sole ground that it was filed outside the 7 days period allowed by the Rules of the Court below in the face of the provisions of Order 51 Rule 1(1) of the Rules of the Court below and the primus place of the issue of jurisdiction in the law, in my finding, amounted clearly to an irredeemable and gross breach of the Appellant’s right to fair hearing. The Appellant was thus not given a level playing field, as afforded the Respondent, by the Court below to present the entirety of its case as it thinks fit according to law. This in my finding is the sure but unfortunate fate of the ruling of 23/7/2015 and all subsequent proceedings of the Court below conducted in flagrant breach of the Appellant’s right to fair hearing. They are all a nullity. See APGA V. Ameke (2012) 8 NWLR (Pt. 1303) 433; Odigwe V. JSC, Delta State (2011) 10 NWLR (Pt. 1255) 254; See Gukas V. Jos International Breweries Ltd.
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(1991) 6 NWLR (Pt. 199) 614; Isyaku v. Master (2003) 5 NWLR (Pt. 814) 443; Chijioke v. Soetan (2006) 10 NWLR (Pt. 990) 179; Akinrimisi V. Maersk (Nig.) Limited (2013) 10 NWLR (Pt. 1361) 73; Usani V. Duke (2006) 17 NWLR (Pt. 1009) 610; Ashira v. Ayoade (2006) 6 NWLR (Pt. 976) 179; Ceekay Traders V. General Motors Co. Ltd. (1992) 2 NWLR (Pt. 222) 132; Pam V. Mohammed (2008) 16 NWLR (Pt. 1112) 1; Shonekan V. P. G. Smith (1967) 1 All NLR 329; Aso Motel Kaduna Ltd. V. Deyemo (2006) 7 NWLR (Pt. 978) 87; RTCFM V. Akugba (2009) 15 NWLR (Pt. 1164) 386; Odusote V. Odusote (1971) 1 All NLR 219; Rasaki Salu V. Madam Towuro Egeibon (1994) 6 NWLR (Pt. (Pt.348) 23.
?
My lords, in the light of the consequences of nullity of the proceedings and ruling of the Court below as held above in this judgment, it therefore, leaves the Appellant’s Motion on Notice to discharge the ex- parte order unresolved according to law and which ought to be remitted to the Court below for another judge of the said Court to hear and determine same expeditiously according to law, while observing the rights of the respective parties to be fairly heard as guaranteed by Section 36 (1) of the
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Constitution of the Federal Republic of Nigeria 1999 (as amended).
In coming to the above conclusion to allow the appeal and remit the Appellant’s Motion on Notice to discharge the ex – parte order to the Court below to be heard and determined by any other judge of the said Court as may be assigned by the Honorable Chief Judge of that Court, I have borne in mind the urgency that should be attached to the expeditious determination of the claims of the Respondent. However, in the light of the grave error of the Court below in failing to consider the Motion on Notice of the Appellant, for whatever it is worth, and determining it one way or the other on the merit rather than terminating it so peremptorily without a hearing, which action regrettably had occasioned a breach of the Appellant’s right to fair hearing and had thus vitiated the entire proceedings and the ruling appealed against and all subsequent proceedings in the said suit before the Court below, I think and I so hold that the proper order to make on the success of this appeal is an order remitting the Motion on Notice to the Court below for expeditious hearing and determination. In my finding
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therefore, anything short of this would not meet the justice of this case so that the parties would be duly heard on the Appellant’s Motion on Notice by the Court below in the interest of justice and same determined according to law. See Abodundu V. The Queen (1959) 4 FSC 70 @ pp. 71 – 72. See also Samalla Umaru V. The State (2009) 8 NWLR (Pt. 1142) 134; Erekanure V. The State (1993) 5 NWLR (pt. 294) 385; Elijah V. The State (2013) LPELR – 20095 (SC); R. V. The Queen (1979) 2 WLR 221; Sunday Kajubo V. The State (1988) 3 NWLR (Pt. 80) 721; Grace Akinife v. The State (1988) 3 NWLR (Pt. 85) 729; James Ikhane v. COP. (1977) 6 SC 78. See also Total Nig Ltd. v. Wilfred Nwako (1972) 8 – 9 SC (Reprint) 1; Bibhanti Devi V. Navayah Roy (1946) AC 508; Alhaji Saude V. Alhaji Abdulahi (1989) NWLR (pt. 116) 387.
In the circumstances therefore, I hold that the appeal has merit and ought to be allowed. Consequently, it is hereby allowed.
In the result, the ruling of the Federal High Court Lagos Judicial Division in Suit No. FHC/L/CS/768/2015: Barrister Toluwani Yemi Adebiyi V. Nigerian Electricity Regulatory Commission delivered on 23/7/2015 in which the Appellant’s
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Motion on Notice filed on 3/7/2015 was struck out is hereby set aside.
In its stead, the Appellant’s Motion on Notice filed on 3/7/2015 is hereby remitted to the Court below to be re-assigned by the Honorable Chief of the said Court to any other judge of the said Court, save M. B. Idris J., for same to be heard and determined expeditiously according to law.
There shall be no order as to cost.
MOHAMMED LAWAL GARBA, J.C.A.: My learned brother Biobele Abraham Georgewill, JCA has comprehensively considered the very narrow and crucial issue that calls for decision by the Court in this appeal, in the lead judgment written by him, which I read in draft. I agree with the conclusion that the Lower Court took “its eyes off the ball” when it struck out the Appellant’s motion on the ground that it was filed out of time without a hearing, inspite of and despite the fact that it had earlier extended the time for the filing of the said motion. The Appellant was thus denied a hearing and the merit of its application was not considered and decided by that Court, the ominous consequence of which is to render the proceedings and the Ruling
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by it, null, void and of no legal effect howsoever. See Military Governor, Imo State vs. Nwauwa (1997) 2 NWLR (490) 675. Nwosu vs. Nwosu (2000) 4 NWLR (653) 357, Ndukauba v. Kolomo (2005) 4 NWLR (915) 411, FBN, Plc v. T.S.A. Industry Limited (2010) 15 NWLR (1216) 247.
In the above circumstances, for reasons set out in the lead judgment, I too allow the appeal in the terms thereof.
TIJJANI ABUBAKAR, J.C.A.: My learned Brother Biobele Abraham Georgewill JCA, granted me the privilege of reading in draft the lead Judgment just rendered. I am in agreement with the reasoning and conclusion and therefore adopt the entire judgment as my own with nothing extra to add.
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Appearances:
Chief A. Idigbe, SAN with him, P. Edokpayi, Esq. and U. Oganwu, Esq.For Appellant(s)
Toluwani Yemi Adebiyi, Esq. in personFor Respondent(s)
Appearances
Chief A. Idigbe, SAN with him, P. Edokpayi, Esq. and U. Oganwu, Esq.For Appellant
AND
Toluwani Yemi Adebiyi, Esq. in personFor Responden
