ALHAJI ADAMU HASSAN v. UNITY BANK PLC
(2018)LCN/11892(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 11th day of July, 2018
CA/S/122/2014
RATIO
APPEAL: WHETHER TO RAISE A QUESTION NOT APPEALED
“It is settled law that the Court of Appeal and the Supreme Court will not allow a party on appeal to raise a question not raised or grant leave to a party to argue new grounds not canvassed in the lower Court except where the new grounds involves substantial points of law or procedure which need to be allowed to prevent an obvious miscarriage of justice. See SALATI V. SHEHU (1986) 1 NWLR (Prt 15) 198 at 203, UNITED MARKETING CO. LTD .V KURA (1963) 1 WLR 523. In EZE V. A.G RIVERS STATE (2001) 12 SC (Prt 11) 21 at 28” PER MUHAMMED LAWAL SHUAIBU, J.C.A.
FUNDAMENTAL RIGHT: RIGHT TO FAIR HEARING
“Fair hearing within the meaning of Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) means that a trial must be conducted according to all the legal rules formulated to ensure that justice is done to the parties. The doctrine of fair hearing is therefore not a technical one but it is one of substance. The question is not whether a party is entitled to be heard but whether he had in fact been heard.” PER MUHAMMED LAWAL SHUAIBU, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
ALHAJI ADAMU HASSAN Appellant(s)
AND
UNITY BANK PLC Respondent(s)
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the High Court of Sokoto State delivered on 3/12/2013. The respondent as plaintiff before the trial Court commenced a suit under the undefended list claiming against the defendant as follows: –
1. The sum of N2, 787, 042.31 (Two Million, Seven Hundred and Eight Seven Thousand and Forty Two Naira, Thirty One Kobo) being an advance facility and accrued interest 27% per annum granted to the Defendant which has remained unpaid despite repeated demands.
2. 10% on the said sum from 5th June, 2013 until judgment is entered in this suit.
3. Thereafter 10% of the judgment sum until judgment sum is liquidated.
4. Cost of this action.
Upon service of the Writ of Summons on the defendant, he neither appeared nor file any notice of intention to defend. Consequently, the matter proceeded to hearing and in a reserved and considered judgment delivered on 3/12/2013, learned trial judge found at page 77 of the record of appeal as follows: –
The plaintiff to my mind is entitle to seek or demand the repayment of the outstanding amount of the facility since the defendant has failed to settle when due the outstanding amount owed to the plaintiff despite several undertakings to do so. This will be in conformity with the terms in Exhibit A signed by both parties.
Being dissatisfied, appellant appealed to this Court by filing a notice of appeal on 13/2/2014 which was amended and further amended on 3/12/2014 and 16/2/2017 respectively. The said further amended notice of appeal contain four (4) grounds of appeal.
Distilled from the said further amended grounds of appeal, learned appellant’s Counsel M. U. Uwais, Esq., formulated four issues for the determination of this appeal as follows:
1. Whether an interest in the bank loan fall within the definition of liquidated money demand which can be conveniently decided under the undefended list. (Distilled from ground 1).
2. Whether the Constitutional Right to fair hearing of the Appellant as enshrined in the Constitution of the Federal Republic of Nigeria 1999 (as amended) has not been breached. (Distilled from ground 2).
3. Whether the documents relied upon by the lower Court to arrive at its decision were admissible documents even when same offended the provision of the illiterate protection Act. (Distilled from ground 3).
4. Whether the lower Court has the requisite jurisdiction to hear and determine the matter even when the said matter is subject of arbitration. (Distilled from ground 4).
Learned respondent counsel Suleiman Oji Esq., on his part formulated three issues thus: –
1. Whether there was any fact express or implied from the facts and circumstances of the case which in any way affects the jurisdiction of the trial Court to hear the suit?
2. Whether the issues raised in grounds 3 and 4 of the appellant’s grounds of appeal are weighty enough to affect the judgment of the trial Court?
3. Whether from the record of the trial Court, there is evidence of breach of the right of fair hearing of the Appellant?
Having regard to the appellant’s complaint against the judgment of the trial Court, it is my considered view that issues 2 and 4 of the appellant’s brief of argument are more apt and germane for the determination of this appeal.
I shall accordingly determine this appeal based on the said two issues as formulated by the appellant. For the sake of clarity, the said two issues are reproduced hereunder as follows: –
1. Whether the lower Court has the requisite jurisdiction to hear and determine the matter even when the said matter is subject of arbitration.
2. Whether the Constitutional Right to fair hearing of the Appellant as enshrined in the Constitution of the Federal Republic of Nigeria, 1999 (as amended) has not been breached.
Before proceeding to consider the argument of learned counsel for both sides on the above formulations, it is prudent to first consider the respondent’s notice of preliminary objection. The ground of the said objection are as follows: –
1. By the rules of this Honourable Court leave is essential before an appeal can be filed and failure to obtain such leave this Honourable Court lacks the jurisdiction to entertain such appeal.
2. Where issues being canvassed in an appeal borders on mixed law and fact, it does not lie in the month of an Appellant to dub such issues as that of law.
3. A party given an opportunity to be heard who failed to avail himself of such opportunity should blame himself.
Arguing the preliminary objection, learned counsel for the respondent submitted that there is nowhere in the entire record of appeal the issue as to whether the suit is fit to be heard under undefended list was canvassed or pronounced upon. He also submitted that the question as to whether or not a suit is fit to be heard under the undefended list involves the evaluation of facts and same not being a ground of law, the appellant cannot raise it for the first time on appeal without seeking the leave of Court.
Still in argument, learned counsel submitted that the question of literacy or illiteracy of the appellant was neither canvassed nor pronounced upon before the trial Court and thus a fresh issue requiring the leave of this Court. He referred to OLALOMI INDUSTRIES LTD V. NIGERIAN INDUSTRIAL DEVELOPMENT BANK LTD (2009) 7 SCNJ 195 and WILLIAM O. OLAGUNJU V. POWER HOLDING CO. OF NIGERIA PLC (2011) 4 SCNJ 192.
In his reply brief, learned appellant’s counsel referred to the provision of Section 241 (1) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) in submitting that the appellant has the constitutional right to appeal against any final decision of the High Court sitting as the Court of first instance irrespective of whether the grounds of appeal are strictly on law, facts or mixed law and facts.
In further argument, learned counsel submitted that a question as to whether or not the Court from which an appeal lies has jurisdiction will be considered by the Court to which an appeals lies even where both parties are reluctant to or agreed not to raise the point in the notice of appeal. Thus, it is immaterial that the party raising it on appeal did not participate in the proceeding of the lower Court. He referred to BAKOSHI V. CHIEF OF NAVAL STAFF (2004) 15 NWLR (Prt 896) 268 and KOTOYE V. SARAKI (1994) 7 NWLR (Prt 357).
It is settled law that the Court of Appeal and the Supreme Court will not allow a party on appeal to raise a question not raised or grant leave to a party to argue new grounds not canvassed in the lower Court except where the new grounds involves substantial points of law or procedure which need to be allowed to prevent an obvious miscarriage of justice. See SALATI V. SHEHU (1986) 1 NWLR (Prt 15) 198 at 203, UNITED MARKETING CO. LTD .V KURA (1963) 1 WLR 523. In EZE V. A.G RIVERS STATE (2001) 12 SC (Prt 11) 21 at 28, the Supreme Court has held that this rule is subject to the conditions that: –
(a) The Court has before it all the evidence which is needed to completely support the new contention;
(b) Even where there is merely an omission to raise a legal proposition which can be supported by the facts as found by the Court of trial without the assistance of additional evidence, the appellate Court will in the exercise of its discretion and in the interest of justice and finality not ignore the argument to raise the point at that stage.
(c) However, where the new points will give totally different character to the case fought by the parties in the Court below, or the new points cannot be resolved without the benefit of additional evidence, the Court will even refuse to grant leave.
There is no gainsaying the fact that the judgment on appeal was not only a final decision but has also finally determined the rights of the parties in the claim before the trial Court. That being the position, the appellant has a right to appeal to this Court pursuant to Section 241 (1) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) as of right irrespective of the nature of the grounds of appeal. See OMONUWA V. OSHODIN (1985) 2 NWLR (Prt 10) 924, UDE V AGU (1961) 1 ALL NLR 61, EBOKAM V. EKWENIBE & SONS TRADING CO LTD (1999) NGIGE V. DISU (2017) 16 NWLR (Prt 1590) 1 at 16. I also agree with the submission of the learned counsel for the appellant that issue of jurisdiction or lack of it can be raised at any stage of the proceedings, even on appeal and even on the point being raised suo motu by the Court. See OLOBA V. AKEREJA (1988) 7 SC (Prt 84) 508 at 519.
In the instant case, the issues distilled from grounds 1, 3 and 4 are clearly new points not previously raised in the trial Court. The principles on the question of raising new points not previously raised in the trial Court are well settled. They include the requirement of leave of Court to raise them and the satisfaction of the Court that no further or additional evidence is required on the issues to be considered. Thus, there is a total bar against new points designed to establish a case different from the Court of trial. Therefore, the new points raised from grounds 1, 3 and 4 being totally different case from the ones considered in the Court of trial would not be taken on appeal.
Where parties failed to raise issues and cite authorities in support for the consideration of the trial judge; they cannot suddenly raise on appeal those issues that were not raised of the trial and blame the trial Court for failure to raise them. See OSUDE V. AZODO (2017) 15 NWLR (Prt. 1588) 293.
Perhaps, there is need to reiterate that mere christening and or levelling ground 4 as a question of jurisdiction does not ipso facto make it so. Any agreement to submit a dispute to arbitration does not oust the jurisdiction of the court. Consequently, the appellant having failed to obtain the required leave runs foul of the above stated time honoured principle of the law.
In the light of the above, grounds 1, 3 and 4 are hereby struck out and so also the issues distilled therefrom including issue No. 4 formulated by the appellant.
However, being an intermediate Court, I will nonetheless proceed to determine the nominated issues including the said issue No. 4.
As stated earlier that issue No. 2 questions the decision of the trial Court on the ground that same has breached the constitutional right of the appellant to fair hearing.
Fair hearing within the meaning of Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) means that a trial must be conducted according to all the legal rules formulated to ensure that justice is done to the parties. The doctrine of fair hearing is therefore not a technical one but it is one of substance. The question is not whether a party is entitled to be heard but whether he had in fact been heard.
The appellant’s contention was that he was not served with originating processes that gave rise to this appeal. Learned appellant counsel submitted that service of process on the adverse party is a condition precedent to the exercise of jurisdiction by Court. He referred to SKENCONSULT (NIG) LTD V. UKEY (1981) 1 SC 6 OMABUWA V. OWHOFATSHO (2006) 5 NWLR (Prt 972) 40 and NITEL PLC V. 1.C.K (DIRECTORY PUBLISHERS) LTD (2009) 16 NWLR (Prt 1167) 356.
In further argument, he submitted that the various ways in which service of Court can be proved are-
a. By certificate of service signed by the process server,
b. Proof of service by affidavit,
c. The appearance in Court of the party, served as ordered in the process or on the return date stated in it or on the hearing notice attached thereto.
He referred to MOHAMMED V. MUSTAPHA (1993) 5 NWLR (Prt. 292) 222 in urging this Court to hold that there was no service of the originating process on the appellant and that failure to serve in accordance with the law is a fundamental flaw.
On his part, learned respondent’s counsel contended that there was an affidavit of service on the appellant on 17th September, 2013 for the hearing of the undefended list on the 30th September, 2013. Notwithstanding that the appellant was duly served; the trial Court had to adjourned the suit to 7th October, 2013 and ordered for fresh hearing notice to be served on the appellant. Consequent upon being satisfied that the appellant had in fact been served, the trial Court allowed the respondent to proceed with the hearing of the suit. He thus submitted that once opportunity has been given to a party to put across his case before a Court, the party ignores such opportunity to his peril. In other words, such party cannot turn around to complain of denial of fair hearing.
Still in argument, learned counsel submitted that the duty on Courts in relation to the principle of fair hearing stops at creating a fair hearing environment. He referred to INAKOJU V. ADELEKE (2008) 30 WRN. It is held that when a case placed on the undefended list comes up on the return date, the Court has one and only duty, to see whether the defendant has filed a notice of intention to defend together with an affidavit disclosing a defence on merit and if no such notice and affidavit has been filed within the required period before the return date, the Court has no choice in the matter than to proceed to hear the matter as an undefended suit and enter judgment for the plaintiff. See OLALEKAN V. I.M.B LTD (2011) 5 NWLR (Prt. 1239) 183.
In the instant case, the appellant had at the return date, failed and or neglected to file a notice of intention to defend together with an affidavit on merit. The important point here is that the action was brought under the undefended list. It has been held at pages 67 – 69 of the record of appeal that the defendant was properly served. Thus, the trial Court had every right to try the matter even on the first day of its coming before it. I cannot therefore, accede to the argument of counsel for the appellant that there was no proof of service of the originating process on the defendant (now appellant).
On whether or not the trial Court had jurisdiction to determine the subject matter of the suit, learned appellant counsel submitted that in view of the arbitration clause contained in the loan facility Exhibit E the jurisdiction of the trial Court is ousted. Learned counsel for the respondent contended otherwise. He submitted that any agreement to submit a dispute to arbitration does not oust the jurisdiction of the Court.
By virtue of the provisions of Section 5 of the Arbitration and Conciliation Act, Laws of the Federation of Nigeria, 2004, if any party to an arbitration agreement, commences any action in Court with respect of any matter which is the subject of an arbitration agreement, any party may at any time after appearance and before delivering any pleadings or taking any other steps in the proceedings, apply to the Court to stay the proceedings.
However, the jurisdiction of the Court is determine by the subject matter and the claim(s) of the claimant as disclosed in the Writ of Summons and other originating processes. I have reproduced the claim of the respondent before the trial Court and there is no features of the said claim that oust its jurisdiction. Thus, the lower Court had the necessary vires to entertain the matter submitted to it for adjudication. Therefore, the issues formulated are resolved against the appellant.
In the result, this appeal lacks merit and it is hereby dismissed. The respondent is entitled to costs which is assessed at N50, 000.00.
HUSSEIN MUKHTAR, J.C.A.: I have had the privilege of reading in advance, the lead judgment just rendered by my learned brother, Muhammed Lawal Shuaibu, JCA. I agree with the reasoning therein and the conclusion that the appeal is lacking in substance.
The unmeritorious appeal is hereby dismissed. I adopt the consequential orders made in the judgment.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Judgment of my learned Brother MUHAMMED L. SHUAIBU, JCA just delivered and I am in total agreement with his conclusions in dismissing the Appeal as lacking in merit. I abide by the consequential orders made thereto.
Appearances:
M. U. UwaisFor Appellant(s)
Abdulrahman AbubakarFor Respondent(s)
