ECONOMIC AND FINANCIAL CRIMES COMMISSION v. CHIEF DANIEL OBUMENEKE OKEMUO & ORS
(2018)LCN/12408(CA)
In The Court of Appeal of Nigeria
On Thursday, the 12th day of April, 2018
CA/L/928/2010
RATIO
FUNDAMENTAL RIGHT: RIGHT TO FAIR HEARING
“A crucial component of the fundamental right to fair hearing is the opportunity to be heard. This means that a Court of law must ensure that every person subjected to the machinery of justice, is afforded every opportunity to present his own side of the story. This is the essence of the maxim “audi alteram patem” that is hear the other side.
The Supreme Court restated this settled principle in the case of MPAMA v. FIRST BANK OF NIGERIA PLC. (2013) LPELR-19896(SC) Pp. 29-30, paras G-A, where per Rhodes-Vivour, it held thus:
“Audi alteram partem means hear the other side. It is a maxim denoting basic fairness and a canon of natural justice. It simply means that a judge should allow both sides to be heard and should listen to the point of view or the case of each side.”
See:ASSAMS & ORS v. ARARUME & ORS (2015) LPELR-40828(SC); ODUNLAMI v. THE NIGERIAN NAVY (2013) LPELR-20701(SC); and CHINEDU v. I.N.E.C. & ANOR (2014) LPELR-22483(CA).” PER JAMILU YAMMAMA TUKUR, J.C.A.
SERVICE: FAILURE TO SERVE A PARTY
“This settled rule of law was recently restated by the Apex Court in the case of IHEDIOHA & ANOR v. OKOROCHA & ORS (2015) LPELR-40837(SC), Pp.23-25, para. C, where per Okoro J.S.C., it held thus:
“I must emphasize that service of process is an important aspect of the judicial process. Failure to serve a named party with Court Process offends Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). As was rightly pointed out by the learned counsel for the 11th respondent, Chief Falade, the failure to serve those respondents constitutes a breach of the Rule of fair hearing and robs the Court of its jurisdiction to hear the appeal. Any breach of this principle renders the proceedings a nullity. See Chime v. Onyia (2009) All FWLR (Pt. 480) 673 at 731 paras. H-B. Service of process, I must say, is a fundamental issue and a condition precedent before the Court can have competence to adjudicate. See Eke v. Ogbonda (2007) All FWLR (Pt. 351) 1456 at 1482 para H.”
See: EMEKA v. OKOROAFOR & ORS (2017) LPELR-41738(SC); SHETTIMA & ORS v. SHETTIMA (2016) LPELR-40178(CA); and A.G. OF EDO STATE & ANOR v. CHURCHGATE INDUSTRIES LTD & ANOR (2016) LPELR-41439(CA).” PER JAMILU YAMMAMA TUKUR, J.C.A.
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
ECONOMIC AND FINANCIAL CRIMES COMMISSION (EFCC) Appellant(s)
AND
1. CHIEF DANIEL OBUMENEKE OKEMUO
2. THE CENTRAL BANK OF NIGERIA
3. SPRING BANK PLC Respondent(s)
JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the leading Judgment):
This is an appeal against the ruling of the High Court of Lagos State in Suit No: M/915/09 delivered on 19th May, 2010 by Honourable Justice O. A. Taiwo in favour of the 1st Respondent.
The material facts of this appeal are that the 1st Respondent vide an application dated 18th November, 2009 for the enforcement of fundamental rights, obtained an order of the lower Court, preventing the Appellant from “arresting, detaining, imprisoning or incarcerating, holding and/or howsoever depriving the Applicant of the dignity of his person, personal liberty and freedom of movement on account of or in relation to, the lease facility between Dan Dollars Motors Nigeria Limited and the 2nd Respondent the subject of the Suit No. LD/2069/5005 and Appeal No. CA/L/636/2007 and in the pendency thereof”.
Dissatisfied with the ruling, the Appellant appealed to this Court vide an Amended Notice of Appeal dated 17th May, 2017 and filed on 24th May, 2017 with five grounds of appeal.
The Appellant’s Amended Brief settled by Chief Godwin Obla, SAN is dated 17th May, 2017 and filed on 24th May, 2017.
Appellant’s counsel formulated three issues for determination to wit:
1. Whether the entire proceeding leading to the restraining order against the Appellant as conducted by the trial Court in the absence of the Appellant and without service of requisite Processes of Court or hearing notice on the Appellant as to enable it enter its defence was regular? (Ground 4).
2. Whether the order of the trial Court made against the Appellant is valid, being one made to restrain the Appellant from performing its statutory obligations? (Ground 1)
3. Whether the restraining order of the trial Court made against the Appellant, being inconsistent with the Court’s finding that the Applicant was not able to establish a case of threatened violation of his fundamental rights, was competent? (Grounds 2, 3 and 5)
None of the Respondents filed a brief of argument. Arguing the first issue learned counsel for the Appellant submitted that the trial Court breached the rules of fair hearing as evinced by the admission of the 1st Respondents counsel at an advanced stage of the trial to the effect that service of relevant Court processes were yet to be effected on the Appellant and the fact that there was no evidence of any service on or appearance of the Appellant throughout the trial. He relied on the following:
Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999; and Adigun v. A-G Oyo State (1987) 1 NWLR (Pt. 53) at 694.
Learned counsel also argued that the trial Court failed in its duty to ensure that the Appellant was duly notified of the proceedings which affected its rights, thereby failing to meet with a condition precedent to its valid assumption of jurisdiction.
He cited the cases of John Andy and Sons Ltd v. Mfom (2006) NWLR (Pt. 995) page 497 paras D-E, 447 paras. A-D; and Idiata v. Ejeko (2005) 11 NWLR (Pt. 936) 349 at 346.
With regards to the second issue, learned counsel for the Appellant argued that the order made by the lower Court operates as a restraining order against the statutory functions of the Appellant, which the Court lacks the power to make. He relied on the following:
Sections 6, 7 and 46 of the Economic and Financial Crimes Commission Act, 2004; Fawehinmi v. I.G.P. (2002) 7 NWLR (Pt. 767) 606 at 686-687; Bamidele v. Commissioner for Local Government (1994) 2 NWLR (Pt. 329) 568 at 583; Nnewi and Sons v. C.O.P (2000) HRLR 156 at 164; A.G., Anambra State v. Chief Andy Uba (2005) 15 NWLR (Pt. 979) 44 at 67; and A.G. Ondo State v. A.G. Federation (2002) 9 NWLR (Pt. 772) 222 at 418-419.
Learned counsel also argued that even if the order is valid based on the facts before the lower Court, it would operate to shield the 1st Respondent from criminal prosecution, even in circumstances where fresh facts that necessitate such prosecution emerge, and thus cannot be allowed to stand.
He cited the case ofA.G. Anambra State v. UBA (2006) NWLR (Pt. 1005) 266 at 389.
Concerning the third and final issue, learned counsel for the Appellant argued that the decision of the trial Court under review is invalid, as it was not based on the evidence placed before it of trial, which was to the effect that the 1st Respondent did not establish a case of threatened arrest/infringement of fundamental rights against the Appellant.
He relied on the following:
A.G. Abia v. A.G.F (2006) 16 NWLR (Pt. 1005) P.361; Nkwocha v. MTN (Nig.) Ltd (2008) NWLR (Pt. 1099) pg 457 Paras F-H; and Bamgbegbin v. Oriare (2009) 13 NWLR (Pt. 1158) pg. 400, paras. C-E.
Learned counsel also argued that the fact that the decision of the trial Court was inconsistent to its earlier finding that the 1st Respondent did not prove that there was threatened arrest, operated to render the decision incorrect.
He cited the case of S.E.C v. Osindero Oni and Lasebikan (2009) 5 NWLR (Pt. 1134) pg. 399-400, paras. E-B.
RESOLUTION
This appeal is on a very narrow compass and looking at the issues formulated by learned counsel for the Appellant vis-a-vis the decision of the lower Court, I am of the firm view that the appeal can effectively be determined on the first issue distilled by the Appellant and which issue in my view captures the grouse of the Appellant with the decision of the lower Court.
A crucial component of the fundamental right to fair hearing is the opportunity to be heard. This means that a Court of law must ensure that every person subjected to the machinery of justice, is afforded every opportunity to present his own side of the story. This is the essence of the maxim “audi alteram patem” that is hear the other side.
The Supreme Court restated this settled principle in the case of MPAMA v. FIRST BANK OF NIGERIA PLC. (2013) LPELR-19896(SC) Pp. 29-30, paras G-A, where per Rhodes-Vivour, it held thus:
“Audi alteram partem means hear the other side. It is a maxim denoting basic fairness and a canon of natural justice. It simply means that a judge should allow both sides to be heard and should listen to the point of view or the case of each side.”
See:ASSAMS & ORS v. ARARUME & ORS (2015) LPELR-40828(SC); ODUNLAMI v. THE NIGERIAN NAVY (2013) LPELR-20701(SC); and CHINEDU v. I.N.E.C. & ANOR (2014) LPELR-22483(CA).
One of the ways in which the above principle of law finds expression is the rule that a Court of law must ensure the service of originating processes and/or hearing notices on a party to a suit, in order to notify and afford such a party the opportunity to be heard and satisfy itself that such party is aware of the proceedings. As rightly argued by Appellant’s counsel, failure to serve requisite processes could lead to the finding that a Court lacked jurisdiction to hear the matter, which would subsequently truncate any decision arrived therein.
This settled rule of law was recently restated by the Apex Court in the case of IHEDIOHA & ANOR v. OKOROCHA & ORS (2015) LPELR-40837(SC), Pp.23-25, para. C, where per Okoro J.S.C., it held thus:
“I must emphasize that service of process is an important aspect of the judicial process. Failure to serve a named party with Court Process offends Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). As was rightly pointed out by the learned counsel for the 11th respondent, Chief Falade, the failure to serve those respondents constitutes a breach of the Rule of fair hearing and robs the Court of its jurisdiction to hear the appeal. Any breach of this principle renders the proceedings a nullity. See Chime v. Onyia (2009) All FWLR (Pt. 480) 673 at 731 paras. H-B.
Service of process, I must say, is a fundamental issue and a condition precedent before the Court can have competence to adjudicate. See Eke v. Ogbonda (2007) All FWLR (Pt. 351) 1456 at 1482 para H.”
See: EMEKA v. OKOROAFOR & ORS (2017) LPELR-41738(SC); SHETTIMA & ORS v. SHETTIMA (2016) LPELR-40178(CA); and A.G. OF EDO STATE & ANOR v. CHURCHGATE INDUSTRIES LTD & ANOR (2016) LPELR-41439(CA).
At page 55 of the record of appeal the proceedings in the lower Court is reproduced thus:-
IN THE HIGH COURT OF LAGOS STATE
HOLDEN AT LAGOS JUDICIAL DIVISION
SITTING AT COURT 42 GENERAL CIVIL DIVISION, LAGOS
BEFORE HON. JUSTICE O. A. TAIWO (MRS.)
TODAY FRIDAY THE 20TH DAY NOVEMBER, 2009
SUIT NO: M/915/09
BETWEEN
CHIEF DANIEL OBUMENEKE OKEMUO – APPLICANT
AND
1. THE CENTRAL BANK OF NIGERIA
2. SPRING BANK PLC
3. ECONOMIC AND FINANCIAL CRIME COMMISSION (E.F.C.C.)
4. THE INSPECTION GENERAL OF POLICE
Parties
M. O. Bison for the Applicant
MR. BISONG: We have filed and served the 1st Respondent with our motion on notice.
However we are yet to serve the 2nd-4th Respondents.
I apply for an adjournment.
COURT: Case is adjourned to 16/12/2009 for hearing.
HON. JUSTICE O. A. TAIWO (MRS.)
JUDGE
20/11/09
The proceedings of the lower Court on 16th December, 2009 captured at page 119 of the record of appeal did not indicate that the Appellant was served with hearing notice or the motion itself. On that date the parties in Court where the 1st Respondent herein who was the applicant and the 2nd Respondent who was the 1st Respondent in the lower Court. The proceedings of 8th February, 2010 and 17th March, 2010 do not also show the appearance of the Appellant in the lower Court.
On 19th May, 2010 the Ruling, subject of the instant appeal was delivered and the parties in Court were M. O. Besong Esq. for applicant and D. A. Inilade for the 1st Respondent.
In applying the principles expounded by the Apex Court to the facts of this appeal, it is clear that the trial Court flouted the said principles in relation to the Appellant who was the 3rd Respondent at the lower Court, as the Appellant was never involved throughout the hearing of the application; there was no evidence of affidavit of service, which is the usual means of proving service, especially in the absence of the affected party; and there was no evidence of issuance of hearing notice. The motion itself was never served on the Appellant, in violation of the requirements of Order 5 Rule 2 of the Fundamental Right (Enforcement Procedure) Rules 2009 which provides that service of the application on all parties personally is mandatory so long as service duly effected on the Respondent’s agent will amount to personal service on the Respondents.
There is nothing in the record to show that the motion was served on the Appellant before its hearing and determination by the lower Court. See ACHUZIA v. OGBOMAH (2016) LPELR-40050(SC); FBN PLC & ANOR v. FCMB PLC & ANOR (2013) LPELR 22050 (CA)
See: UMAR & ANOR v. OKEKE (2016) LPELR-40258(CA); IDISI v. ECODRILL (NIG.) LTD & ORS (2016) LPELR-40438 (SC); ABDULHAMID v. BABAGANA (2017) LPELR-43393(CA); and OLORUNTOGBE v. SKYE BANK (2017) LPELR-42717(CA).
The law is trite as pronounced in a plethora of cases that no matter how tardy a party might be in the prosecution or defence of his case before a Court, he has the Constitutional right guaranteed by Section 36(1) of the 1999 Constitution to be notified of the dates when the cause or matter will be heard. See BANGARI v. DANBIYU (2013) LPELR-24211 (CA) I.N.E.C. v. D.P.P. & ORS (2014) LPELR-22809 (CA).
One of the attributes of the right of fair hearing is that a party should not be denied the opportunity of presenting argument and making submission in support of his case, and a party cannot be said to have been given his right to fair hearing when he was not afforded the opportunity of appearing before the Court and laying his arguments for its consideration and determination. Where the Court proceeded to determined a matter without affording a party to the suit an opportunity of being heard the whole proceedings becomes a nullity and all the efforts and industry put in its actualization is thus rendered in vain.
This Court in MBADIKE & ORS v. LAGOS INT’ TRADE FAIR COMPLEX MANAGEMENT BOARD & ORS (2017) LPELR 41968 (CA) per Georgewill, JCA eloquently stated the point thus:-
“In law where the requisite jurisdiction is found to be lacking, that is indeed the end of the matter, in A.G. LAGOS STATE v. DOSUNMU (1989) 3 NWLR (Pt. 111) 552. The Supreme Court per Kayode Esq. JSC, had put it poetically thus:
“Without jurisdiction, the laborers that is the litigant and counsel on the one hand and the Court on the other hand labour in vain.”
So it was in the lower Court. See also OKON v. ADIGWE & ORS (2011) LPELR-4528 (CA); ESSIEN & ORS v. EDET & ORS (2003) LPELR-5460 (CA).
In the absence of any evidence of the service of the motion on notice and the requisite hearing notices all the efforts made by both parties and the lower Court came to nought and amounted to a nullity.
In the final analysis I find the appeal meritorious and same is allowed by me. The decision of the lower Court delivered on 19th May, 2010 is hereby set aside.
There shall be no order as to costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the advantage of reading in draft the judgment prepared by my learned brother, Jamilu Yammama Tukur, J.C.A., with which I agree and adopt as my judgment.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother JAMILU YAMMAMA TUKUR, J.C.A., just delivered with which I agree and adopt as mine. I have nothing more to add.
Appearances:
S. O. Agidi For Appellant(s)
For Respondent(s)
