MR. IYKE STEVEN NWOFOR v. THE ECONOMIC AND FINANCIAL CRIMES COMMISSION & ORS
(2019)LCN/12986(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of March, 2019
CA/L/801/2010
JUSTICES
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
MR. IYKE STEVEN NWOFOR Appellant(s)
AND
1. THE ECONOMIC AND FINANCIAL CRIMES COMMISSION
2. THE CHAIRMAN, ECONOMIC AND FINANCIAL CRIMES COMMISSION
3. CSP AYO AJALA
4. UNION HOMES SAVINGS AND LOANS PLC
5. MR. ISMAILA ADAMU
6. MR. FEMI OLADAPO Respondent(s)
RATIO
THE PURPOSE OF A PRELIMINARY OBJECTION
The law is however settled that a Preliminary Objection is filed in circumstances where there is a point of law or error of fact that goes to the roots of the appeal, capable of truncating the appeal at that stage, because the effect of the error robs this Court of jurisdiction to hear the appeal.
This is what the Supreme Court was driving at in the case of KENTE v. ISHAKU & ORS (2017) LPELR-42077(SC)(P. 19, Paras. C-F)per KEKERE-EKUN, J.S.C., thus:
“Where a preliminary objection is raised to the hearing of an appeal, the purpose is to truncate the hearing of the appeal in limine. In other words the challenge must be so fundamental as to affect the competence of the entire appeal. Where the objection will not fully dispose of the appeal, a preliminary objection is not the proper approach. Where there are valid grounds that can sustain the appeal what the respondent should do is to file a motion seeking to strike out the incompetent grounds of appeal. See: Odunukwe Vs Ofomata (2010) 18 NWLR (pt. 1225), 404; N.D.I.C. Vs Oranu (2001) 18 NWLR (pt. 744) 183; Dada Vs Dosunmu (2006) 18 NWLR (Pt. 1010) 134.”
The essence therefore of a Preliminary Objection to the hearing of appeal is to lead quickly to the termination of the matter in limine, to avoid the dissipation of energy and also waste of valuable time on matters that have no legal standing. Adverting my mind to the notice of Preliminary Objection raised by the 4th ? 6th Respondents, it is in reality not a Preliminary Objection against the hearing of the appeal but an attack on ground 2 of the notice and grounds of appeal.
The Appellant herein has predicated his appeal on six (6) grounds of appeal and not just on ground 2. Thus by the decision of the Supreme Court in Kente Vs Ishaku & Ors (Supra). The instant notice of Preliminary Objection has no legal foundation.
See: Bank of Industry Ltd v. Awojugbagbe Light Industries Ltd (2018) LPELR-43812(SC); Umar & Ors v. Managing Director, FHA, Abuja & Anor; and Waziri Umaru Federal Polytechnic Birni Kebbi & Ors v. Bala (2017) LPELR-42505(CA). PER TUKUR, J.C.A.
WHETHER OR NOT PARTIES WHO APPROACH THE COURT FOR REDRESS TO A PERCEIVED WRONG SHOULD BE GIVEN EVERY OPPORTUNITY TO AIR THEIR GRIEVANCES
It is indeed an indubitable principle of law that parties who approach the Court for redress to a perceived wrong, should be welcomed into the hallowed halls of justice and be given every opportunity to air their grievances or ventilate their grouse. This is a fallout of one of the key aspects of the fundamental principle of fair hearing, which is that a party should be heard before a decision is made one way or another concerning his interest. This is the only way justice can be said to have been done.
The Apex Court reiterated the above principle in the case of AG RIVERS STATE V UDE (2006) LPELR-626(SC), (P.19, Paras.B-G) where per Musdapher J.S.C., it held thus:
“A hearing of matter in Court cannot be said to be fair if any of the parties appearing before the Court is refused a hearing or is denied the opportunity to be heard or present his case or call evidence; see for example Mil. Governor, Imo State v. Nwauwa (1997) 2 NWLR (Pt.490) 675. The right to fair hearing is a fundamental constitutional right guaranteed by the Constitution of the Federal Republic of Nigeria 1960, 1979, and 1999, and a breach of it in trials or adjudication vitiates the proceedings rendering the same null and void and of no effect. Any judgment which is given without due compliance and which has breached fundamental right of fair hearing is a nullity and is capable of being set aside either by the Court that gave it or by an appellate Court. See Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt.622) 290; Deduwa v. Okorodudu (1976) 9 – 10 SC 329, Amadi v. Thomas Aplin & Co. Ltd. (1972) 4 SC 228. Sadau v. Kadir (1956) 1 FSC 39, (1956) 1 SCNLR 93. But a party to a legal dispute cannot claim breach of fair hearing where he has wilfully absented himself from the hearing or failed to give evidence when called upon to do so”.
See: POROYE & ORS v. MAKARFI & ORS (2017) LPELR-42738 (SC); KUBAU v. RILWANU (2013) LPELR-22346(CA); and ISIAK & ANOR V. OPOBIYI (2012) LPELR-8540(CA). PER TUKUR, J.C.A.
THE IMPORTANCE OF BASIC HUMAN RIGHTS
The importance of ensuring that the basic human rights which the Constitution has recognised and entrenched, be readily enforced when the need arises cannot be overstated.
See:RANSOME-KUTI & ORS. V. A.G FEDERATION & ORS (1985) LPELR-2940 (SC); ONYIRIUKA v. A-G ENUGU STATE (2018) LPELR-45104(CA); and OKAFOR & ORS v. NTOKA & ORS (2017) LPELR-42794(CA).
Fair hearing connotes a proceeding that is conducted in accordance with all the applicable rules of law, both procedural and substantial, whose purpose is to ensure that justice is done.
See: NWOKOCHA v. AG OF IMO STATE (2016) LPELR-40077(SC); TRANSOCEAN SHIPPING VENTURES PRIVATE LTD v. MT SEA STERLING (2018) LPELR-45108 (CA); and UBA PLC v. DANA DRUGS LTD (2018) LPELR-44103(CA). PER TUKUR, J.C.A.
WHETHER OR NOT PROCEEDING BEFORE A COURT IS STAUTORILY REQUIRED TO BE A MATTER OF PUBLIC HEARING
Proceedings before a Court of law in this country, is statutorily required to be a matter of public hearing. Thus, a Judge ought to conduct the business of the Court in the Courtroom and any deviation from the foregoing, will result in the proceedings so carried being declared a nullity.
Appellant?s counsel has rightly referred to Section 36(3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), which makes public hearing of trials mandatory.
The Apex Court in the case of ALIMI & ORS v. KOSEBINU & ORS (2016) LPELR-42557(SC)(Pp. 17-18, Paras. E-A)per NGWUTA, J.S.C., while applying the settled principle of law stated thus:
“Notwithstanding the reasons stated in the judgment of the trial Court, the delivery of the judgment in chambers is a breach of the provision of Section 36 (3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Proceedings held in chambers including the delivery of judgment cannot be said to have been “held in public” within the intendment of Section 36 (3) (supra). The Court below was right to have set aside the proceedings as null and void.”
See: NUHU V OGELE (2003) LPELR-2077(SC); 7UP BOTTLING CO. v. UGWU & ORS (2017) LPELR-42685(CA); and Abarshi V. C.O.P. (2005) 5 NWLR (Pt. 917) 36 at 48 – 49 (CA). PER TUKUR, J.C.A.
JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Federal High Court Lagos Division in SUIT NO. FHC/L/CS/288/2010 delivered on 18th May, 2010, by Honourable Justice C.E. Archibong wherein the Court refused Appellant?s application.
?The material facts culminating in this appeal, are that following series of arrests carried out on the Appellant by various divisions of the Police, ending with investigations by the Criminal Investigations Department, Alagbon, Ikoyi, and subsequently an arrest by the Economic and Financial Crimes Commission, in respect of complaints made by the 4th Respondent concerning the granting of loans/overdraft facilities by the Appellant in his capacity as the erstwhile Branch Manager of the 4th Respondent?s Central Lagos Bank, the Appellant by a Motion on Notice dated 8th March, 2010, sought declarations by the Court to the effect that filing of complaints with both the EFCC and the Nigerian Police at the same time is contrary to public policy and constitutes a breach of the Appellant?s rights to personal liberty and freedom of movement.
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Appellant further sought an order of perpetual injunction restraining the 1st to 3rd Respondents from conducting investigations on the complaint when same is pending before the Nigerian Police; and an order of perpetual injunction restraining the Respondents from interfering with the personal liberty and movement of the Appellant.
In response, the 4th to 6th Respondents filed a Counter Affidavit dated 31st March, 2010, while the 1st to 3rd Respondents filed a Notice of Preliminary Objection dated 12th May, 2010.
On the 18th of May, 2010, the learned trial Judge ruled that it would not restrict either the Police or the EFCC in the discharge of their statutory duties.
Dissatisfied, the Appellant appealed the decision vide a Notice of Appeal dated 28th May, 2010, with six grounds of appeal.
Appellant?s Brief of Argument settled by U.C. Ikegbule, Esq., of Ibrahim Tahir, Ikegbule & Associates, is dated and filed on 8th December, 2010, but deemed properly filed on 30th June, 2011.
Appellant?s counsel distilled four issues for determination, to wit:
1. Whether the learned trial Judge?s failure to allow
2
the Appellant move his Motion on Notice dated 8th day of May, 2010 before refusing the application did not amount to a denial of fair hearing occasioning a miscarriage of justice.
2. Whether it was not improper for the learned trial Judge to have given his decision in this suit in his chambers rather than in open Court?
3. Whether in the circumstances of this case, it was legally proper for the learned trial Judge to have refused the Appellant?s Motion on Notice dated 8th day of May, 2010 without giving reason(s) for his decision?
4. Whether the learned trial Judge did not fail to evaluate the evidence presented by the Appellant before the Court when he gave his decision in this matter refusing the Appellant?s Motion on Notice dated 8th day of May, 2010.
On the other hand, the 1st to 3rd Respondents? Brief of Argument settled by ABC Ozioko Esq., of the Economic and Financial Crimes Commission, is dated and filed on 2nd November, 2011, but deemed as properly filed on 3rd December, 2018.
1st to 3rd Respondents formulated three issues for determination thus:
1. Whether, having regard to the facts and circumstances of this case,
3
the rules of Natural justice and the principle of fair hearing were contravened by the trial Court in the case. (Ground 1)
2. Whether the judgment of the trial Court can be said to be or is a nullity for being purportedly delivered in chambers. (Ground 2)
3. Whether the judgment appealed against is without reason, perverse and occasioned a miscarriage of justice. (Grounds 3,4,5)
4th to 6th Respondents? Brief of Argument settled by Bennita Adinuba Esq, of Ikoro and Company, is dated and filed on 1st August, 2011.
4th to 6th Respondents? counsel distilled three issues for determination to wit:
1. Whether, having regard to the facts and circumstances of this case, the rules of Natural justice and the principle of fair hearing were contravened by the trial Court in the case. (Ground 1)
2. Whether the judgment of the trial Court can be said to be or is a nullity for being purportedly delivered in chambers. (Ground 2)
3. Whether the judgment appealed against is without reason, perverse and occasioned a miscarriage of justice. (Grounds 3,4,5)
PRELIMINARY OBJECTION
Learned counsel for the 4th to 6th Respondents
4
filed a Notice of Preliminary Objection dated 5th September, 2011, and filed on 6th September, 2011.
The grounds of the said objection are herein stated thus:
i. The Appellant failed to comply with Order 7 Rule 1 of the Court of Appeal Rules in filing the Affidavit.
ii. That the Appellant?s Affidavit is designed to destroy the core and fulcrum of the Respondents? argument on issue no. 2 against the Appellant?s ground 2 of this Appeal and the issues thereon concerning the delivery of judgment in Chambers.
Counsel filed a Written Address in support of the Preliminary Objection, wherein he raised two issues to wit:
i. Whether in view of the circumstances of this matter the Appellant?s Affidavit concerning delivery of judgment in chambers is competently and properly before the Court.
ii. Whether having regard to the circumstances of this matter the Appellant?s Affidavit is not designed to overreach the 4th to 6th Respondents in this matter.
?On issue one, learned counsel for the 4th to 6th Respondents argued that the Appellant?s affidavit dated 10th August, 2011, is incompetent and improperly
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before this Court because it was filed without any Motion on Notice, it is devoid of any Rules under which it was brought and the grounds for the relief sought as required by the Rules of this Court.
He relied on Order 7 Rule 1; and Amogun v. Adesina (1994) 4 NWLR Pt.339 503 Ratio 4.
On issue two, learned counsel for the 4th to 6th Respondents argued that the affidavit is designed to overreach the 4th to 6th Respondents as it was filed in response to the issue and argument raised in the 4th to 6th Respondents? brief on the effect of Appellant?s failure to file an affidavit backing up its challenge of the record of proceedings.
He relied on the cases of Yusuf v. Adegoke (2007) FWLR (Pt.385) page 419 paras F-G; and Kode v. Yussuf (2001) FWLR (Pt.40) 1727 at page 1748 paras C-D.
?RESOLUTION
Learned counsel for the 4th to 6th Respondents by this Notice of Preliminary Objection seek to impeach the affidavit filed by the Appellant. The law is however settled that a Preliminary Objection is filed in circumstances where there is a point of law or error of fact that goes to the roots of the appeal, capable of truncating the appeal at
6
that stage, because the effect of the error robs this Court of jurisdiction to hear the appeal.
This is what the Supreme Court was driving at in the case of KENTE v. ISHAKU & ORS (2017) LPELR-42077(SC)(P. 19, Paras. C-F)per KEKERE-EKUN, J.S.C., thus:
“Where a preliminary objection is raised to the hearing of an appeal, the purpose is to truncate the hearing of the appeal in limine. In other words the challenge must be so fundamental as to affect the competence of the entire appeal. Where the objection will not fully dispose of the appeal, a preliminary objection is not the proper approach. Where there are valid grounds that can sustain the appeal what the respondent should do is to file a motion seeking to strike out the incompetent grounds of appeal. See: Odunukwe Vs Ofomata (2010) 18 NWLR (pt. 1225), 404; N.D.I.C. Vs Oranu (2001) 18 NWLR (pt. 744) 183; Dada Vs Dosunmu (2006) 18 NWLR (Pt. 1010) 134.”
The essence therefore of a Preliminary Objection to the hearing of appeal is to lead quickly to the termination of the matter in limine, to avoid the dissipation of energy and also waste of valuable time on matters that have no legal
7
standing. Adverting my mind to the notice of Preliminary Objection raised by the 4th ? 6th Respondents, it is in reality not a Preliminary Objection against the hearing of the appeal but an attack on ground 2 of the notice and grounds of appeal.
The Appellant herein has predicated his appeal on six (6) grounds of appeal and not just on ground 2. Thus by the decision of the Supreme Court in Kente Vs Ishaku & Ors (Supra). The instant notice of Preliminary Objection has no legal foundation.
See: Bank of Industry Ltd v. Awojugbagbe Light Industries Ltd (2018) LPELR-43812(SC); Umar & Ors v. Managing Director, FHA, Abuja & Anor; and Waziri Umaru Federal Polytechnic Birni Kebbi & Ors v. Bala (2017) LPELR-42505(CA).
In line with the above the preliminary objection is dismissed.
The issues raised by counsel on both sides are substantially the same, I therefore adopt the issues raised by the 4th ? 6th Respondents, for the purpose of convenience in the determination of this appeal.
ISSUE ONE:
WHETHER, HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THIS CASE, THE RULES OF
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NATURAL JUSTICE AND THE PRINCIPLE OF FAIR HEARING WERE CONTRAVENED BY THE TRIAL COURT IN THE CASE. (GROUND 1)
Learned counsel for the Appellant argued that the learned trial Judge?s failure to give the Appellant opportunity to move his Motion on Notice dated 18th March, 2010, before his decision refusing same in his chambers, amounts to a denial of the Appellant?s right to fair hearing.
He relied on the following:
Section 36(1) 1999 Constitution; Order 9 Rule 8 of the Federal High Court (Civil Procedure) Rules, 2009; Order VI Rules 1 and 2 of the Fundamental Rights (Civil Procedure) Rules, 2009; Olafemi v. Ayo (2009) 19 WRN 30 at 81; Mohammed v, Kano Native Authority (1968) 1 All NLR 424; Pam v. Mohammed (2008) 40 WRN 62 at 143; Mobil Producing Nig. Ltd v. Monokpo (2004) 9 WRN 1 at 81; Okeke v. Chukwu (2003) 13 WRN 36; Eriobuna v. Obiorah (1999) 8 NWLR (Pt.618) 622 at 642; and Pam v. Mohammed (supra) at p.141.
Learned counsel also argued that a close scrutiny of the Record of Appeal, shows that the Appellant was never asked to orally move the motion, nor where the Appellant?s counsel adopted the written address, rather the lower Court made its
9
decision based on the opening remarks of Appellant?s counsel and the oral response of counsel to 1st to 3rd Respondents.
On the other hand, 1st to 3rd Respondents adopted the arguments of 4th to 6th Respondents.
Learned counsel for the 4th to 6th Respondents argued that the decision of the Court did not breach the Appellant?s right to fair hearing, as the Appellant?s submissions at the hearing of the case on 18th May, 2011, is in accord with the reliefs and grounds set out in his statement, thus meeting the requirement of the Fundamental Rights Enforcement Procedure Rules.
Learned counsel also argued that Appellant?s counsel was present in Court throughout the proceedings and was always afforded the opportunity to make representations in respect of his case, including on the 18th May 2010 when the case was heard and he was called upon to present his case, which he did.
He relied on: Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999; Order VI Rule 1 & Order VIII Rule 6 of the Fundamental Rights (Enforcement) Rules; Ndukauba v. Kolomo 2005 FWLR (Pt.248) 1602 at 1616 paras C-D;
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Maritime Academy of Nigeria v. Associated Quantity Surveyors 2008 FWLR (Pt.406) 1872 at 1889 paras F-A; ACME Builders Ltd v. Kaduna State Water Board 1999 4 SCW (Pt.539) at 571 para C; Dakula v. Shagamu 2008 FWLR (Pt.413) 1260 at 1309 para C; Ekerebe v. Efeizomor 1993 7 NWLR (Pt.307) 588; and Peterside v. Pepple 2008 FWLR (Pt.406) 1703 at 1719 para G.
RESOLUTION
It is indeed an indubitable principle of law that parties who approach the Court for redress to a perceived wrong, should be welcomed into the hallowed halls of justice and be given every opportunity to air their grievances or ventilate their grouse. This is a fallout of one of the key aspects of the fundamental principle of fair hearing, which is that a party should be heard before a decision is made one way or another concerning his interest. This is the only way justice can be said to have been done.
The Apex Court reiterated the above principle in the case of AG RIVERS STATE V UDE (2006) LPELR-626(SC), (P.19, Paras.B-G) where per Musdapher J.S.C., it held thus:
“A hearing of matter in Court cannot be said to be fair if any of the parties appearing before the Court is
11
refused a hearing or is denied the opportunity to be heard or present his case or call evidence; see for example Mil. Governor, Imo State v. Nwauwa (1997) 2 NWLR (Pt.490) 675. The right to fair hearing is a fundamental constitutional right guaranteed by the Constitution of the Federal Republic of Nigeria 1960, 1979, and 1999, and a breach of it in trials or adjudication vitiates the proceedings rendering the same null and void and of no effect. Any judgment which is given without due compliance and which has breached fundamental right of fair hearing is a nullity and is capable of being set aside either by the Court that gave it or by an appellate Court. See Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt.622) 290; Deduwa v. Okorodudu (1976) 9 – 10 SC 329, Amadi v. Thomas Aplin & Co. Ltd. (1972) 4 SC 228. Sadau v. Kadir (1956) 1 FSC 39, (1956) 1 SCNLR 93. But a party to a legal dispute cannot claim breach of fair hearing where he has wilfully absented himself from the hearing or failed to give evidence when called upon to do so”.
See: POROYE & ORS v. MAKARFI & ORS (2017) LPELR-42738 (SC); KUBAU v. RILWANU (2013) LPELR-22346(CA); and ISIAK & ANOR V. OPOBIYI (2012) LPELR-8540(CA).
12
The need to hear a party is germane to every proceeding, but is arguably more potent with regards to a proceeding wherein a party is alleging the breach of his fundamental rights as is the case with the Appellant in this appeal. The importance of ensuring that the basic human rights which the Constitution has recognised and entrenched, be readily enforced when the need arises cannot be overstated.
See:RANSOME-KUTI & ORS. V. A.G FEDERATION & ORS (1985) LPELR-2940 (SC); ONYIRIUKA v. A-G ENUGU STATE (2018) LPELR-45104(CA); and OKAFOR & ORS v. NTOKA & ORS (2017) LPELR-42794(CA).
Fair hearing connotes a proceeding that is conducted in accordance with all the applicable rules of law, both procedural and substantial, whose purpose is to ensure that justice is done.
See: NWOKOCHA v. AG OF IMO STATE (2016) LPELR-40077(SC); TRANSOCEAN SHIPPING VENTURES PRIVATE LTD v. MT SEA STERLING (2018) LPELR-45108 (CA); and UBA PLC v. DANA DRUGS LTD (2018) LPELR-44103(CA).
In order to determine whether the proceedings adopted by the lower Court is in accord with the applicable rules, particular reference must be
13
made to Order XII, Rules 1-3, which deals with the hearing of a fundamental rights enforcement matter, and same is herein reproduced herein thus:
1. Hearing of the application shall be on the parties? written addresses.
2. Oral argument of not more than twenty minutes shall be allowed from each party by the Court on matters not contained in their written addresses provided such matters came to the knowledge of the party after he had filed his written address.
3. When all the parties? written addresses have been filed and come up for adoption and either of the parties is absent, the Court shall either on its own motion or upon oral application by the Counsel for the party present, order that the addresses be deemed adopted if the Court is satisfied that all the parties had notice of the date for adoption and a party shall be deemed to have notice of the date for adoption if on the previous date last given, the party or his Counsel was present in Court.
The proceedings of the Court which culminated in the decision being appealed is at pages 136-138 of the records, which is herein reproduced thus:<br< p=”” style=”font-size: 14px;”
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IN THE FEDERAL HIGH COURT
HOLDEN AT LAGOS, NIGERIA
ON TUESDAY THE 18TH DAY OF MAY, 2010
BEFORE THE HONOURABLE
JUSTICE CHARLES EFANGA ARCHIBONG – JUDGE
SUIT NO: FHC/L/CS/288/2010
BETWEEN:-
MR. IYKE STEVEN NWOFOR
AND
1. THE ECONOMIC AND FINANCIAL CRIMES COMMISSION, (EFCC)
2. THE CHAIRMAN, ECOMOMIC AND FINANCIAL CRIMES COMMISSION
3. CSP AYO AJALA
4. UNION HOMS SAVING & LOAN PLC
5. MR ISMAILA ADAMU
6. MR FEMI OLADAPO
Applicant Absent
U.C. Ikegbule Esquire for the Applicant
A.Ikoro Esquire for the 4th ? 6th Respondents with him Miss B. Adimba
Mr V. Azinge for 1st ? 3rd Respondents.
Ikegbule:- We are saying that the EFCC should not come in when the Police are already seized of a matter.
Azinge:- We were petitioned and by law are charged with the responsibility to investigate and prosecute Economic Crimes and Financial Crimes.
Ikegbule – The Police Act also empowers the Police similarly and it has concurrent authority in the investigation of economic and Financial Crimes.
Court:- I find it difficult to grant any of the reliefs sought
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other than to caution the EFCC which is empowered to investigate cases such as these, to bring the matter for trial and have a speedy arraignment where it feels the Applicant has a case of answer. The Complainants, 4th and 5th Respondents, are dependent in the law enforcement agencies to resolve the issues, that have arisen from the irregular lending activity, it is the applicant and it would, be rubbing salt on a wound, adding insult to injury, to award any form of order restricting the law enforcement agencies be it EFCC or the Police in any manner in the circumstances. I will not act more than to the EFCC in the terms stated above.
C.E. ARCHIBONG
JUDGE
18/5/2010
The foregoing makes it impossible to state with any modicum of logicality, that the Appellant was heard or duly given the opportunity to be heard by the lower Court. The proper thing which ought to be done is that the Motion be moved and the arguments as couched in the Written Address be taken as the submissions of counsel. Oral adumbration for the purpose of expatiation, emphasis or some similar purpose may then be allowed. There is therefore no doubt that the proceedings in question,
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which led to the ruling of the lower Court being appealed is indeed alien to the true position of the law and must not be allowed to stand.
This issue is accordingly resolved in favour of the Appellant.
ISSUE TWO:
WHETHER THE JUDGMENT OF THE TRIAL COURT CAN BE SAID TO BE OR IS A NULLITY FOR BEING PURPORTEDLY DELIVERED IN CHAMBERS. (GROUND 2)
Learned counsel for the Appellant argued that the decision reached by the learned trial Judge arose from proceedings which took place in the Judge?s Chambers, contrary to the provisions of Section 36(3) of the 1999 Constitution of the Federal Republic of Nigeria, which provides that the proceedings of a Court or tribunal shall be held in public.
He relied on: Order 23 Rule 1 of the Federal High Court (Civil Procedure) Rules; Menakaya v. Menakaya (2001) 16 NWLR (Pt.738) 203; and Joshua v. State (2000) 5 NWLR (Pt.658) 591.
?Learned counsel also argued that the fact that there was no reasonable justification for the lower Court?s action, such as an application by any of the parties that the proceedings be held in camera, raises a suspicion of partiality against the
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Appellant and occasioned miscarriage of justice.
On the other hand, 1st to 3rd Respondents adopted the arguments of 4th to 6th Respondents.
Learned counsel for the 4th to 6th Respondents argued that the Record of Appeal, which is the only accepted indication of what took place in Court, shows clearly that the business of the lower Court and the delivery of the learned trial Judge?s decision were not conducted in chambers, as seen at page 136 to 138 of the records.
Learned counsel also argued that Appellant?s contention that the proceedings held in chambers means he is challenging the veracity of the Record of Appeal, but such challenge ought to be discountenanced because the Appellant failed to follow the procedure laid down for such, which is that the party making the challenge should swear an affidavit setting out the fact that was omitted or wrongly stated in the Record of Appeal.
He referred to Ogidi v. State 2005 FWLR (Pt.251) 202 at 216 para G; Amedu v. Federal Republic of Nigeria 2010 5 NCC 458 at 470-471 paras A-C; Gonzee Nigeria Ltd v. Nigeria Educational Research and Development Council 2005 FWLR (Pt.274) 235 at 245 para D;
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Adetoun Oladeji (Nig) Ltd v. NB Plc 2007 FWLR (Pt.357) 837 paras A-C; Strabag Constr (Nig) v. Odilichukwu 2008 FWLR (Pt.397) 166 at 175 paras E-F; and Amaechi v. Obinna 2009 FWLR (Pt.492) 1163 at 1180 para.E.
RESOLUTION
Proceedings before a Court of law in this country, is statutorily required to be a matter of public hearing. Thus, a Judge ought to conduct the business of the Court in the Courtroom and any deviation from the foregoing, will result in the proceedings so carried being declared a nullity.
Appellant?s counsel has rightly referred to Section 36(3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), which makes public hearing of trials mandatory.
The Apex Court in the case of ALIMI & ORS v. KOSEBINU & ORS (2016) LPELR-42557(SC)(Pp. 17-18, Paras. E-A)per NGWUTA, J.S.C., while applying the settled principle of law stated thus:
“Notwithstanding the reasons stated in the judgment of the trial Court, the delivery of the judgment in chambers is a breach of the provision of Section 36 (3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Proceedings held in chambers
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including the delivery of judgment cannot be said to have been “held in public” within the intendment of Section 36 (3) (supra). The Court below was right to have set aside the proceedings as null and void.”
See: NUHU V OGELE (2003) LPELR-2077(SC); 7UP BOTTLING CO. v. UGWU & ORS (2017) LPELR-42685(CA); and Abarshi V. C.O.P. (2005) 5 NWLR (Pt. 917) 36 at 48 – 49 (CA).
The major impediment to Appellant?s assertion under this issue is that there is no positive evidence showing that the proceedings of the lower Court in question was conducted in Chambers, in contravention of the law. It is trite that the Records of Appeal are the true and manifestly reliable account of what transpired at the lower Court, which this Court will examine in order to draw necessary inferences and conclusions. The contents of the records bind the Appellate Court and the parties.
See: Olorunyolemi & Anor. v. Akhagbe (2010) LPELR-2597(SC); EZEORA v. FRN (2016) LPELR-41144(CA); and SKYE BANK PLC v. TUNS INT’L HOLDINGS LTD & ANOR (2014) LPELR-22690(CA).
?It must also be noted that the Appellant has not successfully controverted the veracity of the Record of
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Appeal in this appeal and as such, I will take the contents as true. This Court has in a number of cases clearly spelt out the procedure for the challenge of the veracity of a Record of Appeal, to the effect that such must be done via affidavit evidence and an application.
The Apex Court in the case of BRITTANIA-U NIG LITD v. SEPLAT PETROLEUM DEVELOPMENT COMPANY LTD &ORS(2016) LPELR-40007(SC), Per NGWUTA, J.S.C. (P. 61, Paras. C-E), put it succinctly thus:
“By characterising the record as incomprehensive, the appellant has challenged the record, but he has not done so by the right procedure. The appropriate manner to impeach the contents of the record of appeal is by affidavit evidence. See Adm-General CRS v. Chukwuogor Nig Ltd (2007) 6 NWLR (Pt. 1030) 398”.
This Court in OBIAKOR & ORS v. OKAFOR (2017) LPELR-43309 (CA)per ABIRU, J.C.A. (Pp. 13-16, Paras. B-A), clearly illustrated the correct procedure thus:
“The law is that the appropriate method to challenge the contents of a record of appeal is not by canvassing facts and arguments in the brief of arguments of a party. It is by filing an affidavit challenging the contents
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of the records of appeal and setting out facts of the part of the proceedings or processes wrongly omitted from or stated in the record and serving the affidavit on the Registrar of the lower Court. Thereafter, the party files an application before the appellate Court seeking to amend the records of appeal to include further documents or additional information – Uwechia Vs Obi (1973) 2 SC 1 at 5-6, Obiamalu Vs Nwosu (1973) 2 SC 15 at 17, Arum Vs Nwobodo (2013) 10 NWLR (Pt 1362) 37 4, Adegbuyi Vs All Progressive Congress (2015) 2 NWLR (Pt 1442) 1. The two steps must be taken by the party challenging the records. It is not proper for a party seeking to challenge the records of appeal not to take any of the steps or to take only one of the steps. Thus, where a party merely files an affidavit challenging the records of appeal and fails to file a motion to amend the records, the affidavits of no legal consequence and achieves nothing. This point was made by the Supreme Court in Garuba Vs Omokhodion (2011) 15 NWLR (Pt 1269) 145 where Chukwuma Eneh, JSC stated thus at 179 to 180 E – B: “The record/proceeding of the 26/4/2010 of the trial Court as affirmed by the lower
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Court has been challenged by the appellant who filed an affidavit to that effect contending that the citation of the two cases viz: Dapianlong Vs Dariye (No 2) (supra) and Inakoju Vs Adeleke (supra) as well their submission thereon has been left out of the record/proceeding of the trial Court on 26/4/2010 and that same be made part of the record of appeal/proceeding of 26/4/2010 in this matter particularly as the said affidavit has not been countered by the other parties. The said affidavit has been served on the parties and the Court and not having been countered, the appellants have contended that the record of appeal/proceeding of 26/4/2010 has ipso facto been accordingly amended without more. With the greatest respect, I must say that to amend the record of appeal in any proceeding including the instant one is much more than simply filing an affidavit challenging the record/proceeding as here without more. All the parties to this suit although served the affidavit challenging the record, it must be followed by a formal application to Court to amend the record for the Court to sanction the amendment as the whole essence of filing an affidavit in that respect is
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to bring about an amendment of the record of appeal/proceeding of 26/4/2010…” The other option opened to a respondent who complains that certain documents are omitted from the records of appeal is to exercise his right under the provisions of Order 8 Rule 6 of the Court of Appeal Rules 2016 to compile and transmit a supplementary record of appeal containing the omitted documents – Michael & Ors Vs Bank of the North (2015) 12 NWLR (Pt 1473) 370, Odu Vs Jarigbe (2017) 4 NWLR (Pt 1556) 445. Where a party fails to challenge the records of appeal in the prescribed manner and/or fails to compile a supplementary record of appeal containing alleged omitted documents, he cannot be heard to argue that there was fraud or misrepresentation in the record compiled – Michael & Ors Vs Bank of the North supra, Odu Vs Jarigbe.”
See:UKAM V. EFCC &ANOR(2012) LPELR-9581(CA).
I am aware of the Affidavit challenging the correctness of the Record of Proceedings, deposed to by Chinedu IKegbule, dated 10th August, 2011. This does not however conform with the requirement of the law with regards to how the records of appeal ought to be challenged and same is therefore discountenanced.
This issue is resolved against the Appellant.
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ISSUE THREE:
WHETHER THE JUDGMENT APPEALED AGAINST IS WITHOUT REASON, PERVERSE AND OCCASIONED A MISCARRIAGE OF JUSTICE. (GROUNDS 3,4,5)
Learned counsel for the Appellant argued that the lower Court refused to furnish any legal reason for its refusal to grant Appellant?s application, an act which is contrary to the law and that the failure of the trial Court to determine the issues raised by the Appellant, particularly whether the Police had the power to investigate the offences in question, and whether the Economic and Financial Crimes Commission could not be restrained in the circumstances, as mandatorily required by law, is arbitrary and occasioned a miscarriage of justice.
He cited the cases of Agbanelo v. UBN (2000) 23 WRN 1 at 11; and N.V. Scheep v. Araz (2001) 4 WRN 1.
?Learned counsel also argued that the decision of the lower Court was a perfunctionary expression of the learned trial Judge?s opinion on the issues raised by the Appellant, without any evaluation of the facts before the Court nor the application of the relevant laws to the issues raised.
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He submitted that the learned trial Judge?s failure to evaluate the evidence meant the wrong decision was reached and resulted in a miscarriage of justice.
He referred to the cases of Uka v. Irolo (2002) 35 WRN 1; Okewunmi v. Sodunke (2002) 12 WRN pg. 24 at 44; and Morenikeji v. Adegbosin (2003) 25 WRN 33.
On the other hand, 1st to 3rd Respondents adopted the arguments of 4th to 6th Respondents.
Learned counsel for the 4th to 6th Respondents argued that contrary to Appellant?s submission, the trial Court?s decision is based on a consideration of the issues raised and a proper evaluation of the evidence, and is backed by reasons which is that the EFCC has powers to investigate the specie of case brought against the Appellant and that it would not interfere in the exercise of such power.
He referred to Sections 5 and 6 of the Economic and Financial Crimes Commission Act;NDIC v. Sheriff 2004 1 NWLR (Pt.855) 563 at 592 paras A-D; and Kraus Thompson Organisation v. NIPSS 2004 17 NWLR (PT.901) 44 at 59 para. G.
?Learned counsel also argued that the Appellant failed to prove that the decision is perverse
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and before this Court can set aside the decision, this Court must be satisfied that that the decision reached, not the reasons given, was wrong and that there was miscarriage of justice.
He relied on the following:
Nkwo v. Iboe 1999 SCW (Pt.495) at 508; Bida v. Abubakar 2011 FWLR (Pt.562) 1653 at 1690 paras D-H; Nkebisi v. State 2010 5 NCC 89 at 104 paras D-E; Isiaq v. Soniyi 2009 FWLR (Pt.498) 347 at 383-384 para A.
RESOLUTION
Courts? decisions are the product of a marriage of law and facts, with the effect that a Court must evaluate the facts of the dispute before it and then apply the relevant principles of law, in order to arrive at a correct decision. Closely linked to the foregoing is the principle that a Court ought to give reasons for its decisions, as they are not made in a vacuum, the rationale behind the inference drawn must be clearly stated.
The Supreme Court in the case of DAUDU v. FRN(2018) LPELR-43637 (SC)per Peter-Odili, J.S.C. (P.43, Paras. C-E), held thus:
This Court had in the case of Agbanelo v. U.B.N. (2000) 7 NWLR (Pt. 666) 534 at 557 per Karibi-Whyte, JSC stated that it is an elementary and
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essential ingredient of the judicial function that reasons are to be given for decisions. That it is crucial or important where appeals lie from the decisions and it is to be said that the reasons for decisions enable the determination on appeal whether the decision was merely initiative and arbitrary or whether it is consistent with established applicable principles. It has to be stated and emphatically too that if a judgment is delivered without supporting reasons it is an irritation or arbitrariness, a rule akin to tossing the coin and whatever side shows up is the decision, a situation that would likely produce in judicially anarchy. The point has to be made that a judgment will not set aside just because the reasons given were bad if the judgment itself is right.”
See: DOMA & ANOR. v. INEC & ORS.(2012) LPELR-7822(SC); SULAIMON v. STATE (2018) LPELR-44280(CA); and SOUTH TRUST BANK & ORS v. PHERANZY GAS LTD & ORS (2014) LPELR-22340(CA).
A fundamental obstruction to the delivery of a valid judgment by the lower Court is the fact that the decision reached is not predicated upon a proper procedure of law. An attempt to
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give a valid judgment without hearing the parties is akin to putting something on nothing and expecting it to stand. The implication of my resolution of issue one in this appeal is that the case of the Appellant was not before the trial Court, and the Court subsequently could not evaluate the facts and law of the Appellant?s case as required by law.
This issue is consequently resolved in favour of the Appellant.
The key issues in this appeal having been resolved in favour of the Appellant, the appeal is hereby allowed.
The decision of the lower Court delivered on 18th May, 2010 is hereby set aside. The case is remitted to the Federal High Court for hearing of the Appellants motion on Notice filed on 8th March 2010 by another Judge other than C.E. Archibong J.
Parties to bear their respective costs.
TOM SHAIBU YAKUBU, J.C.A.: My Lord, JAMILU YAMMAMA TUKUR, JCA., resolved all the issues thrown up in this appeal to my satisfaction. Let me just chip in a word with the non-consideration of the Appellant’s Motion on Notice filed on 8th March, 2010, by the learned trial judge.
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The law has remained well settled to the effect that where any application whether by way of a motion on notice or vide a preliminary objection, which had been properly placed before the Court, the same must be considered and determined by the Court. Therefore, the Court, in its adjudicatory role, must consider and determine such a matter duly placed before it by due process of law, whether it is foolish or childish and a failure to consider and determine such a matter, is tantamount to a denial of fair hearing to the party who made the application and is consequently and adversely attached by the Court’s judgment.
Dingyadi v. Independent National Electoral Commission & Ors (NO.2) (2010) 18 NWLR (pt. 852) 346; (2003) 12 SCNJ 206 @ 238; NALSA & Team Associated v. Nigerian National Petroleum Corporation (1991) LPELR – 1935 (SC); (1991) 8 NWLR (pt. 212) 652 @ 676.
The consequences of a breach of fair hearing to a party, is that the proceedings where it occurred will be declared a nullity and set aside by the appellate Court. Attorney General, Rivers State v. Ude (2006) LPELR – 626 (SC); CITEC International Estate Ltd & Ors. v. Josiah O.
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Francis & Ors. (2014) LPELR – 22 314 (SC); Salu v. Egeibon (1994) S.C.N.J. 223; Adigun v. Attorney General, Oyo State (1987) 1 NWLR (pt. 53) 678.
In the end, I join my learned Brother, Tukur, JCA., in allowing the appeal. The judgment rendered by C.E. Archibong, J., of the in re-Suit No: Federal High Court, Lagos Division, FHC/L/CS/288/2010 on 1st May, 2010 is accordingly, set aside.
The case is hereby remitted to the Chief Judge of the Federal High Court, for a re-assignment to another Judge of that Court, for hearing of the Appellants motion on notice, filed on 8th March, 2010.
Each side shall bear its own costs of the appeal.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: My learned brother, JAMILU YAMMAMA TUKUR, JCA had afforded me in advance the opportunity of reading the judgment just delivered by him.
I have no hesitation in agreeing with the reasoning and conclusion arrived at by my learned brother.
I too hold that the appeal succeeds and I abide by all consequential orders in the lead judgment.
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Appearances:
For Appellant(s)
For Respondent(s)
Appearances
For Appellant
AND
For Respondent
