AMINU A. UMAR v. DANIEL OBI ONWUDINE & ORS.
In The Court of Appeal of Nigeria
On Monday, the 4th day of March, 2002
RABIU DANLAMI MUHAMMAD Justice of The Court of Appeal of Nigeria
VICTOR AIMEPOMO OYELEYE OMAGE Justice of The Court of Appeal of Nigeria
JOSEPH JEREMIAH UMOREN Justice of The Court of Appeal of Nigeria
AMINU A. UMAR – Appellant(s)
- DANIEL OBI ONWUDINE
- ILIYA SALAU
- HON. MAGISTRATE SULEIMAN NUHU
- THE ATTORNEY-GENERAL OF KADUNA STATE – Respondent(s)
UMOREN J.C.A. (Delivering the Leading Judgment): This is an appeal by the 1st respondent against the decision of the High Court of Justice no.1 Zaria division upon an ex-parte application, in that court.
The applicants, 1st and 2nd respondents herein filed an ex-parte application before the said High Court in respect of a case pending between them and the 1st respondent/appellant at the Chief Magistrate’s Court 4, G.R.A. Zaria presided over by the 3rd respondent. The motion ex-parte was for the following reliefs; that is to say:-
- “An order granting leave to the 2nd applicant to be joined as an interested party in this application.
- An order(sic) leave to the applicants to bring to the High Court of Zaria the entire proceedings decisions of the 2nd respondent in suit No. ZAC/126x/96 Aminu A. Umar v. Daniel Obi Onwudine for the purpose of quashing same for being null and void having been made in breach of the applicants’ fundamental rights to fair hearing and without jurisdiction.
- An order compelling the registrar of the 2nd respondent to produce and forward to this court the records of all proceedings, decisions, rulings and judgment in the said suit No. ZAC/126x/96 Aminu A. Umar v. Daniel Obi Onwudine for the purpose of quashing same for being null and void having being made in breach of the applicants fundamental right to fair hearing being made in breach of the applicants fundamental right to fair hearing or having been made without jurisdiction.
- An order releasing to the 2nd Applicant, his bus C.20 Registration No. KD 691 MK detained by the 2nd respondent on the oral application of the 1st respondent. (Emphasis ours).
- An order transferring the suit No.ZAC/126x/96 Aminu A. Umar v. Daniel Obi Onwudine pending before the 2nd respondent to any other Magistrate in Zaria on ground of bias and lack of fair hearing contrary to section 33 of the 1979 Constitution of the Federal Republic of Nigeria as amended (Emphasis ours) etc. (These are contained at pages 8-9 of the record of proceedings).
The Hon. Judge of the High Court aforesaid, S.H. Makeri J. made orders granting the whole prayers on the ex-pate application on the same 28/11/96, (pages 9-10 of the record of proceedings). On the 2/12/96 the 1st respondent appealed against the High Court ex-parte orders. (The notice and the grounds of appeal are at pages 15-17 of the record of proceeding).
The learned trial Judge granted all the reliefs ex-parte.
The facts leading to this appeal were that before filing the ex parte application, there was a complaint in a criminal case of cheating filed at the Chief Magistrate’s Court 4 Chaddiya, Zaria i.e. before the 3rd respondent:
- “The case of the appellant at the Chief Magistrates Court aforesaid was that the complainant had a transaction with the 1st respondent involving vehicle C.20 Bus registration No. KD 691 MK and vehicle Registration No. OY 2137 HB.
- The appellant traded his vehicle with the respondent’s vehicle registration No. OY 2137 HB and the appellant gave the 1st respondent the sum of N100,000.00k in addition to the vehicle to make up for the value of the 1st respondent’s vehicle.
- Afterwards, the 1st respondent met the appellant and recovered his vehicle from the appellant on the premises that vehicle No. OY 2137 HB was a stolen vehicle thereby rescinding the contract between them. The appellant therefore asked for his money (N100,000.00k) and the return of his vehicle registration No. KD 691 MK which the 1st respondent promised to return to the appellant.
- The first respondent later told the appellant that he had sold the appellant’s vehicle to the 2nd respondent and the (N100,000.00k) the 1st respondent insisted that he was no longer willing to return same as a result of which the appellant made a complaint at the Sabon Gari Police Head Quarters Zaria, consequently, the 1st respondent was arrested and the vehicle No. KD 691 MK was impounded by the Police and same detained at the station.
- By and large, the said vehicle was released by the Police without the knowledge or consent of the appellant and at the time, the appellant lost confidence in the police, withdrew his complaint and it was due to this development that the appellant filed a direct criminal complaint against the 1st respondent as a result of which the court ordered for the vehicle No. KD 691 MK to be impounded and deposited at the premises of the High Court No.2 pending the ruling of the court in the criminal case. On the 9/8/96 the 2nd respondent filed a motion for the release of the said vehicle to him and ruling was delivered on 29/8/96 refusing the application at that stage, that the applicant not being a party he had no locus standi and that the application was premature. The 1st respondent filed a similar application on the 2/10/96 which was similarly refused on the 7/11/96 and the case proceeded to trial, all prosecution witnesses were heard and a ruling was made framing charges against the 1st respondent, consequent upon which a date was fixed for defence.
- Instead of appealing against the said ruling of the 3rd respondent, on the 28/11/96 an ex-parte order of the High Court No.1 Zaria was made and the subject matter of the case was released to the 2nd respondent and the case was ordered to be transferred to the King’s Road Chief Magistrate Court.
- It is against this background that the appellant is now before the court of Appeal.
The grounds of appeal are, without particulars as follows:-
(i) The Honourable High Court Judge erred in law and grossly impaired the appellant’s constitutional rights to fair hearing when he made the orders of 28/11/96 conclusive upon an ex-parte application without affording opportunity to the appellant to be heard in response leading to a miscarriage of justice.
(ii) The Hon. High Court Judge erred in law when he made the orders of 28/11/96 aforesaid especially in the light of the affidavit evidence before the court.
(iii) The Honourable Judge of the High Court No.1 Zaria, erred in law and grossly injured the applicant’s constitutional rights to fair treatment and fair hearing by giving the appellant with one hand and taking his rights away with the other when by the 2nd and 3rd order of the lower court “…2. Leave is granted by the applicant to bring to this Hon. court the entire proceedings, decision and orders of the 2nd respondent… for the purpose of quashing same for being null and void having been made in breach of the applicant’s right to fair hearing and or having been made without jurisdiction” (emphasis ours) and “3. An order is made compelling the registrar of the 2nd respondent, to produce before this court the record of all proceedings, decision rulings and judgment of the… for the Applicants fundamental right to fair hearing and or having been made without jurisdiction” (emphasis ours) and by the orders No.4 and 5 the orders were made absolute against the appellant thereby rendering the 2nd and 3rd orders aforesaid in-effectual.
(iv) The learned High Court Judge aforesaid erred in law and infringed the appellant’s constitutional rights to fair hearing when he made conclusive orders upon and exparte application (emphasis ours) without (at least) hearing a motion on notice and thereby condemned the appellant unheard.
(v) The orders of the court below are against the weight of evidence.
The appellant filed his brief of argument and served same on the respondents.
The respondents did not file any respondents’ brief of argument. Rather they filed a notice of preliminary objection on the 20th January, 1997 with grounds 1 (i), (ii), (iii) and 2. There is a supporting affidavit of 45 paragraphs with eight exhibits, AX, BX1, BX2, BX3, BX4, CX, DX AND EX.
The appellant distilled 3 issues from the grounds of appeal filed thus:-
(i) Whether or not the appellant was heard before the orders of 28/11/96 were made (if not) whether the orders were validly made without hearing the appellant.
(ii) Whether or not by the joinder of 2nd respondent and release of the vehicle No. KD 691 MK, the Honourable High Court Judge has prejudged, predetermined or preempted the case which he transferred to the King’s Road Chief Magistrate Court.
(iii) Judging by the circumstance of the application whether or not the Honourable Judge of the High Court No.1 Zaria is justified in making the orders of 28/11/96.
The appellant proceeded to argue the issues without relating them to the grounds of appeal. I will however in the interest of justice proceed with them.
I think it is appropriate at this stage to refer to the preliminary objection filed by the respondent’s counsel A.K. Usman Esq. of counsel, the said preliminary objection is said to have been brought pursuant to 0.3, rule 15 of the Court of Appeal Rules 1981 and section 15(1) of the Court of Appeal Act.
The preliminary objection referred to above, was not filed along with the respondents’ brief and was not argued in court because the respondents never showed up and the appeal had to be heard on the appellants’ brief only. This being so, the preliminary objection has been abandoned and shall be and is hereby struck out.
I will now consider the appeal. I shall take the issues as formulated by the appellant.
Issue No. 1 is split by the appellant into two limbs in his argument. The central pillar of the two limbs is that the appellant was never heard before the orders dated 28/11/96 were made, having been made in an ex-parte application.
The motion before the lower court was an ex-parte application. It was, from the record of proceedings from the Court below, brought pursuant to 0.42, rules 1 and 3 of the High Court Rules of Kaduna State, 1987. This order provides for application for judicial review. They encompass applications for an order of mandamus, prohibition or certiorari, hitherto known as prerogative writs, and an injunction restraining a person from acting in any office in which he is not entitled to act.
In considering the competence of these orders, the following orders of the rule become relevant. The relevant rules are reproduced hereunder:
O.42, r.3(3) “No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.
- An application for leave shall be made ex-parte to the court except in vacation when it may be made to a Judge in chambers…”
- 5(1) Subject to paragraph (2), when leave has been granted to make an application for judicial review, the application shall be made by originating motion, except in vacation when it may be made by originating summons to a Judge in chambers.
- Where leave has been granted and the Judge or court so directs, the application may be made by motion to a Judge sitting in open court or, by originating summons to a Judge in chambers.
- The notice of motion or summons shall be served on all persons directly affected…
- Unless the court granting leave has otherwise directed, there shall be at least 10 clear days before the service of the notice of motion and the day named therein for hearing.
The combined effect of the above rules of Order 42 of the Kaduna State High Court postulates that:
(a) There shall be brought before the court an application ex-parte for leave to bring a notice of motion, originating motion or originating summons. When leave is granted, then.
(b) An originating summons or originating motion shall then be brought for the relief sought.
(c) It shall be served on all the parties directly affected.
- d) There shall be 10 clear days between the service of the Notice of Motion and the day named therein for hearing.
If the application, the subject-matter of this appeal was brought pursuant to 0.42 of the Kaduna State High Court (Civil procedure) Rules 1987, as stated on the application itself, then the procedure as laid down by that same order ought to have been complied with. As the record shows no leave was granted to bring an originating summons or originating motion or motion on notice to the other parties to afford them an opportunity to be heard before making the final orders. The learned trial Judge could not have made a final order on an ex-parte application for leave to apply for an order pursuant to order 42 of the High Court, (Civil procedure) Rules of Kaduna State, herein after referred to as the High Court Rules.
By final order here, I mean the finality of a decision in the sense that the court giving the decision has nothing more to do with the case. It has as far as that case is concerned, decided the matter one way or the other and any further proceedings on it before that court will make it functus officio. See on this Ebokam v. Ekwenibe (1999) 10 NWLR (Pt.622) 242 at 255 para. A. No order judgment or proceedings can be final which does not at once affect the status of the parties for whichever side the decision may be given, so that if it is given in favour of the plaintiff, it is conclusive against the defendant. This, to my mind, is intended to be achieved by the orders in this appeal. I am here having in mind the decision in Ajuta II v. Ngene (2002) 1 NWLR (Pt.748) 278 at 295 paras G-H. I have considered the meaning of Judgment in relation to order elsewhere in this judgment.
The motion ex-parte is the beginning of the journey under the order. The Judge hears the application, and if satisfied that a case has been made out, grants leave to bring the originating motion, originating summons or motion on notice to bring the decision of the inferior tribunal into court for the purpose of its being quashed. On the subsequent application, the court below, after hearing both parties, would then make the relevant orders.
The real question then is whether such application can be heard and granted ex parte. I have examined the nature of the orders made by the learned trial Judge. I am of the humble view that it entails deliberation on a number of well-settled issues upon which the right of the applicant to the grant of it depends. The next question is should and can a court, in view of the provisions of S. 33 of the 1979 Constitution of the Federal Republic of Nigeria, proceed to deliberate on those issues and come to conclusions on them on an ex-parte hearing, that is to say, without giving a hearing to all the parties to be affected by the order?
To answer this question properly, it is necessary to consider the provision under S. 33 of the 1979 Constitution, particularly subsection (1) which provides as follows:-
“(1) In the determination of his civil rights and obligations, 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 a manner as to secure its independence and impartiality”.
Clearly whenever the need arises for the determination of the civil rights and obligation of every Nigerian, this provision guarantees to such a person a fair hearing within a reasonable time. Fair hearing has been interpreted by the courts to be synonymous with fair trial and as implying that every reasonable and fair minded observer who watched the proceedings should be able to come to the conclusion that the court or other tribunal has been fair to all the parties concerned. See on this Mohammed v. Kano N.A. (1968) 1 ALL NLR 424 at 426. There are certain criteria and attributes of fair hearing such as:-
(i) That the court shall hear both sides not only in the case but also in all material issues in the case before reaching a decision which may be prejudicial to any party in the case.
(ii) That the Court or Tribunal shall give equal treatment, opportunity and consideration to all concerned. See on this Adigun v. A.G. Oyo State & Ors. (1987) 1 NWLR (Pt. 33) 687.
(iii) That the proceedings shall be held in public and all concerned shall have access to and be informed of such a place of public hearing.
(iv) That having regard to all the circumstances in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done. See R. v. Sussex Justices, ex-parte Mc-Carty (1924) 1 K. B. 256 at 259. Deduwa & Ors. v. Okorodudu (1976) 9-10 S. C. 329.
Thus, fair hearing in the con of S. 33(1) of the 1979 Constitution encompasses the plenitude of natural justice in a narrow technical sense of the twin pillars of justice-audi alteram partem and nemo judex in causa sua as well as in the broad sense of what is not only right and fair to all concerned but also seems to be so.
It must always to borne in mind when we consider English decisions on the point that in Nigeria, the right of fair hearing is a right entrenched in the Constitution whereas in England it is a creation of the common law which is regulated by the rules. The effect of entrenching a provision in the Constitution is that it overrides all contrary provisions in any law of the land, be they subjective or adjectival. So that even if the objections were to be argued, it would have been taken care of and I would have had more to say on this issue. As Nnaemeka Agu J.S.C. put it in Kotoye v. C.B.N. (1989) 1 NWLR (Pt. 98) 419 at 447 paras F- G.:-
“Parties and their counsel ought not to be encouraged to file and argue a sole application ex-parte when asking for orders which can only be made properly on notice.”
I would allow myself to be guided by the Constitution. Now, under Ss. 219, 220 and 221 of the 1979 Constitution a party is empowered to appeal, as of right or by leave of the court, as the case may be against decisions of a High Court, Federal or State. The word decision is defined in S. 277 of the same Constitution as meaning:-
“In relation to a court any determination of that court, and includes judgment, decree, order, conviction, sentence or recommendation” of the court. It is therefore, wide enough to include the type of order under consideration in this appeal. It follows therefore, that by the very letter of the Constitution which is not only the “Lex Suprema”, the Supreme Law of the land or the ground norm of our legal order, but also, in appropriate metaphor, the touch stone and yard-stick of measurement of all other laws, it is intended that such decision should be appealable. As it is so, all rules of court which run counter to or are inconsistent with this enabling provision of the Constitution are ipso facto, null and void to the extent of the inconsistency. As this is so, an order which ex-facie, as in this appeal, looks final, lacks at least one of the attributes of fair hearing or as for example, equality of opportunity to both sides to the contest.
The concept of natural justice or fair hearing is as old as creation for, as Kayode Eso. J.S.C. put it in Adigun v. A.G. Oyo State (1987) 1 NWLR (Pt. 53) 678 at 721;-
“Natural justice demands that a party must be heard before the case against him is determined. Even God gave Adam an oral hearing despite the evidence supplied by his act of covering his nakedness before the case against him…”
Once a party or an appellant as in this case shows that there is an infringement of the principle of natural justice against him, it is my view that he needs show nothing more. The finding that there is an infringement of the principle is sufficient to grant him a remedy. This is not a case where one, after showing injuria, would need to proceed, further to show damnum. The injuria herein is proof, positive of the damnum.
Having gone that far, I think I can say that the first issue alone is enough to dispose of the appeal and I so hold as I am of the view that the other two issues are tied to or subsumed in issue No.1. Consequently, I allow the appeal and hereby set aside the order of the High Court No.1 Zaria made by Makeri J. in suit No. KDH/Z/IM/96 decided on 28/11/96. The ex-prate application is hereby struck out. Costs in this appeal of N3,000.00 are awarded in favour of the appellants.
R.D. MUHAMMAD, J.C.A.: I have read before now the judgment of my learned brother Umoren, J.C.A. just delivered. He has exhaustively dealt with all the issues raised in this appeal. I am in complete agreement with his reasoning and conclusion. I too allow the appeal and set aside the order of the lower court. I abide by all the consequential orders made in the leading judgment, including the order as to costs.
OMAGE, J.C.A.: This is an appeal against the ex-parte order made by the High Court No.1 Zaria. The order was made on 28/11/96 for the release to the 2nd respondent the subject matter of dispute between the appellant, and the 1st and 2nd respondents. The subject matter of dispute is the vehicle registered as KD 691 MK, and the matter is pending before the Chief Magistrate Court, Zaria. The said High Court No. 1 Zaria by order transferred further hearing of the claim in 1996 to the Kings Road Chief Magistrate Court upon a complaint by the appellant. While the matter was still pending before the 1st Chief Magistrate Court, the said learned Chief Magistrate had ordered that the said vehicle KD 691 MK, be impounded, and refused various applications made by the 1st and 2nd respondents. Upon the ex-parte application of the 2nd respondent, the High Court on 28/11/96 ordered that the said vehicle be released to the 2nd respondent. The High Court transferred further hearing in the suit to the Chief Magistrate at Kings Road, Zaria. It is against the order of the High Court made on 28/11/96 that the appellant now appeals. From the grounds of appeal of the appellant are formulated these Issues:
“Whether or not the appellant was heard before the orders of 28/11/96 were made (if not) whether the orders were validly made without hearing the appellant.”
(i) Whether or not by the joinder of the 2nd respondent and release of the vehicle No. KD 691 MK, the Honourable High Court Judge has prejudged, predetermined or pre-empted the case which he transferred to Kings Road Chief Magistrate Court.
(ii) Judging by the circumstance of the application, whether or not the Honourable Judge of the High Court No.1 Zaria is justified in making the order of 28/11/96.”
Against the appeal, the respondent has filed a preliminary objection to the competence of the appeal. The ground of objection of the respondent is that the appeal of the appellate is found on an ex parte application in which an order of court is made. The respondents submit that the provisions of section 15(1) of the Court of Appeal Act, 1978: specifically prohibits the filing of an appeal on an order made in an ex parte application. They submit that the order made in the ruling upon which the appellant has filed his appeal is on an ex parte motion. The appeal is therefore, incompetent submitted the applicants in their notice of preliminary objection. So certain of the success of the preliminary objection that the respondents to the appeal filed no brief in response to the appeal.
In his brief, the appellant has submitted before the respondent’s notice of preliminary objection as follows:
That the appellant filed this appeal on an ex parte order because the said order of court made without hearing from the order side falls within the definition of decisions provided for in section 227 of the Constitution of Nigeria 1979. Such decisions respondent/appellant submitted are appellable notwithstanding the provisions of section 15(1) of the Court of Appeal. The appellant cited the decision in NAB. Kotoye v. Central Bank of Nigeria and Ors. (1989) 2 SCNJ 31 at 49 inter alia.
In this contribution, I write only to amplify the issue concerning the preliminary objection only. It is appropriate to deal with the preliminary objection of the respondent at this stage and to consider as a response to the preliminary objection the relevant answer in the appellants brief which precede the respondents’ objection, but which in my view is an appropriate answer to the issue of the respondents’ objection. The appellant agrees in his brief with the respondent that the order on which he appeals to on one made to an ex parte application.
That section 15 of the Act and Order 3 of the rules prohibits an appeal founded on an ex-parte order but avers that the order of the High Court of 28/11/96 on an application made ex-parte is in this case a final order and it is a decision of the High Court order.
The order, the appellant/respondent to the motion submitted if final because as the order has been made, he would have no further recourse to the court. In my view there are two points on which to comment on the submission of the appellant the first is whether the said order of the court is a final decision, the second is whether the order is a decision. It is permissible at law in the Civil Proceedings for a party against whom an order is obtained on an ex-parte application to apply to the same court to set aside the order. Thus, there is nothing in law which prevents the appellant from seeking form the High Court (1) Zaria an order to set aside its order if the appellant believes it was wrongly or fraudulently obtained. The next point is whether indeed the order is a decision. The appellant in his brief has described the said order of court as a decision. In considering the point, it is right to look into why the word “decision is relevant to as to whether or not, the fact that the order is a decision excludes the order from the provision of section 15(1) of the court of Appeal. As recorded above the sections prohibits an appeal on an order made on an ex-parte application. The appellate did not refer to the year of the Constitution he cited. It is clear from the record that the event on appeal occurred in 1996. Before our present 1999 Constitution came into being there was the 1979 Constitution it can be concluded without error that the appellant was referring to that Constitution. The appellant referred to section 277 of that Constitution. It is in fact the applicable law at the time and this issue is being considered under the 1979 Constitution. Section 277 of the 1979 which refers to any “decisions not necessarily a final decision Constitution as the present Constitution gives a right of appeal to an aggrieved party on a decision of the High Court to the Court of Appeal. See Kalu v. Odili 1992 5 NWLR (Pt.240) P.189-189 Para. 4. This is in conflict with the provision of section 15 of the Court of Appeal Act. A decision as provided in the 1979 Constitution should be given a liberal interpretation say the Justices of Supreme Court in Kalu’s case. It is a determination of a Court of law which includes or covers the determination of an application before it but the meaning does not include observations or expression of opinion not related to issues joined by the parties in dispute”. See also Oredoyin v. Arowolo (1989) 4 NWLR (Pt.114) 172-211 per Oputa JSC.
The decision of the Supreme Court of Nigeria which in my view precisely deals with the interpretation of a decision of the Court under section 277 of the 1979 Constitution was given by his Lordship Karibi White JSC in Ogunbadejo v. Owoyomi (1993) 1 NWLR (Pt 271) …where his Lordship wrote:
“By virtue of section 277(1) of the 1979 constitutional decision means in relation to a Court any determination of that court, and includes judgment decree order conviction sentence or recommendation. A “decision” as this defined does not mean only judgment although it includes Judgment.”
See also Eliochin (Nig.) Ltd v. Mbadiwe (1986) 1 NWLR (Pt.14) 47.
Thus described above, a decision includes an order and not necessarily a judgment. In the instant appeal the High Court No 1 Zaria in making an order on an ex parte application has made a decision on which the appellant has appealed. It seems to me therefore that though the appellant has the option to go to the High Court on the order made, the appellant may choose to appeal, when the order made by the Court below, a State High Court is a decision. In electing to appeal on such a decision the appellant has travered the provisions of the Court of Appeal Act Section 15. There is also a provision in the rules made by the President of the Court of Appeal. The power to make such rules is specifically conferred on the President of Court of Appeal by law. In the case of the provision relevant to this appeal, the power is conferred under section 222 of the 1979 Constitution. The Act creating the Court of Appeal under which section 15 was made is an Act of parliament. However, in the provision of the Constitution section 277 gives the right to go to court when a decision has been made, as in the instant case. Therefore my view is that as the provisions of section 15 of the Court of Appeal Act is inconsistent with the provision of the Constitution, the provision of the Constitution will be held to prevail. In the result, the appellants’ appeal is in my view properly made. It is competent. The preliminary objection is incompetent and misconceived it is therefore dismissed. In respect of the above, I am in agreement with the decision of my learned brother Umoren, JCA that the appeal is competent and should be allowed. On the issues argued in the appeal my learned brother Umoren, JCA has dealt duly with the said issues on appeal and I have nothing to add, except to say I also allow the appeal.
I associate myself with his reasoning and conclusion and abide with the order for costs.
Abdulhamid Rabiu, Esq.,For Appellant
- K. Usman, Esq.,For Respondent