ANDONG & ORS v. ASUQUO & ORS (2020)

ANDONG & ORS v. ASUQUO & ORS

(2020)LCN/14360(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, June 26, 2020

CA/C/47/2018

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

KEMBENGTA-OBONNA EFFIONG OFFIONG ANDONG 2. OBONN ITA OKON ITA 3. DENO ENNO OBO EFFIOM OBO 4. MRS. ROSEMARY NSA ETIM 5. MR. CHARLES ITAM BASSEY OKON-OKPO 6. MR. EFFIONG OKON ASUQUO 7. HON. BASSEY EFFIONG OKON (For Themselves And As Parading And Operating Under The Name And Style Of “Okoyong Council Traditional Rulers & Chiefs (O.C.T.C.)”) APPELANT(S)

And

APOSTLE OKON E. ASUQUO 2. APOSTLE (BARR) EDET E. OKON 3. APOSTLE ETETIM O. ASUQUO 4. CHIEF BASSEY ITA EDET 5. CHIEF ROWLAND EFFIONG-NYONG 6. CHIEF (MRS) SUSAN NSEFIK 7. DENO ENUO (MRS) IDEM E. ITA 8. DEACONESS EKANEM ETETIM AYIMO (For Themselves And On Behalf Of Onim Aniong Clan Council, Odukpani Local Government Area) 9. THE CROSS RIVER STATE DEPARTMENT OF POLITICAL CHIEFTAINCY AFFAIRS, GOVERNOR’S OFFICE, CALABAR 10. HON. JOHN EYIKWAJE, SPECIAL ADVISER DEPARTMENT OF POLITICAL & CHIEFTAINCY AFFAIRS, CALABAR RESPONDENT(S)

RATIO

THE FUNDAMENTAL RIGHT TO FAIR HEARING

The right to fair hearing is a fundamental right of a party to a dispute to be afforded an opportunity to present his case to the adjudicating authority and this authority dispersing arbitration or resolution of disputes need not to be the regular Court as we know it but anybody so composed and filling the gap adjudicatorily. The touchstone for determining the observance of fair hearing is not the question whether any injustice has been occasioned on any party due to want of hearing. It is rather the question whether an opportunity of hearing was afforded to parties entitled to be heard. See OLAYIOYE V OYELARANI (2019)4 NWLR (prt 1662) 351 at 373. PER SHUAIBU, J.C.A.

WHETHER OR NOT NON-SERVICE OF HEARING NOTICE ROBS THE COURT OF JURISDICTION TO HEAR AND DETERMINE A MATTER

The law is settled that non-service of hearing notice robs the Court of jurisdiction to hear and determine a matter and any order made thereby against the party who should have been served with the hearing notice becomes null and void. See ENL CONSORTIUM LTD V. S.S. (NIG) LTD (2018) 11 NWLR (prt 1630) 315 at 326, F.B.N PLC V. TSA INDUSTRIES LTD (2015) 11 NWLR (prt 1470) 346 and GUDA V. KITTA (1999)12 NWLR (prt 629) 21. PER SHUAIBU, J.C.A.

WHETHER OR NOT THE COURT OWES A DUTY TO HEAR ALL PARTIES ON THEIR APPLICATION

The Court no doubt owes it a duty to hear all parties on their applications and serve as an umpire rightly holding the truth and not seen to do a party’s case. Thus, no party is to be shut out on an account of being unheard. And to do this would amount to a fundamental breach of the rules of natural justice, equity and good conscience. See ENEBELI V. CBN (supra). In KOTOYE V. SARAKI (1999)8 NWLR (prt 211) 638 TOBI, JCA (as he then was) at page 649, paras B – C said:
“A Court as a legal institution established for adjudication of two or more competing interests have a legal duty to hear applications before it. The applications may not have any merits. They could be bogusly and inelegantly framed but once there is some legal basis for the applications, a Court of law is bound to entertain them.”PER SHUAIBU, J.C.A.

THE PURPOSE OF AN INTERLOCUTORY APPLICATION

The purpose of an interlocutory application is generally to keep the parties to an action in Court in a position of status quo ante bellum and in that way preserve the res the subject matter of litigation. See OBEYA MEMORIAL HOSPITAL V. A.G. FEDERATION (1987) 3 NWLR (prt 60) 325. PER SHUAIBU, J.C.A.

WHETHER OR NOT AN INTERLOCUTORY MATTER SHOULD BE DETERMINED BEFORE THE SUBSTANTIVE ISSUE

The trial Court as well as the intermediate Courts should desist from making positive pronouncement touching on the substantive issue while they engage in determination of interlocutory matters before them. See UDOH V. ASUQUO (2006) 9 NWLR (prt 985) 299, AKAPO V. HAKEEM HABEEB (1992)6 NWLR (prt 247) 266, DINGYADI V. INEC (NO.2) (2010)18 NWLR (prt 1224) 154, OMNIA (NIG) LTD V. DYKTRADE (2007)15 NWLR (prt 1018) 576 and STATOIL (NIG) LTD V. INDUCON (NIG) LTD (2018)9 NWLR (prt 1625) 586. PER SHUAIBU, J.C.A.

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the High Court of Cross River State, sitting at Calabar and presided by Honourable Justice Michael Edem delivered on 7th November, 2017 wherein the lower Court granted the respondents’ motion for interlocutory injunction at pages 162-163 of the record of appeal thus:-
“Viewed in a considered prism of reflection, I am satisfied that the applicants, though the application is unopposed, have made out a sunlight clear case for an order of interlocutory injunction with a guarantee if not a warranty of undertaking as to damages. And I so order in the sum of N500,000.00 (five Hundred Thousand Naira) should this application end up as a mere hoax of a means to an end.
In consequence whereof, I now further order as follows:
i. An order of interlocutory injunction restraining the defendants/respondents, their servants, agents, privies, hireling and whomsoever derives authority from them, from further encroachments into, dealing with and or exploiting the natural resources in any part of Onim Ankiong Clan Land pending the determination of the

substantive suit.
ii. An order of interlocutory injunction restraining the defendants/respondents, their servants, agents, privies, hirelings and whomsoever derives authority from them, from further acting or creating a rival or parallel administration in Onim Ankiong Clan Land pending the determination of the substantive suit.
iii. Cost of N50,000.00 (Fifty Thousand Naira) against the defendants/respondents”.

Being dissatisfied, the appellants appealed to this Court through a notice of appeal filed on 14th November, 2017. The said notice of appeal at pages 164 – 169 of the record of appeal contains six grounds of appeal.

At the hearing of the appeal on 4th June, 2020, learned senior counsel, Mba E. Ukweni leading E. O. Abba, Esq. adopted and relied on the appellants’ brief of argument filed on 6th April, 2018 along with appellants’ affidavit challenging the record of appeal filed on 5th April, 2018. Sony Amba Mgbe Esq., adopted and relied on the 1st – 8th respondents’ brief of argument filed on 20th June, 2018. Anthony Effiong Esq. Director, Civil appeal, Ministry of Justice, Cross River State adopted

and relied on the 9th – 10th respondents’ brief of argument filed on 3rd June, 2020 but deemed as properly filed on 4th June, 2020.

The appellants formulated two issues for the determination of this appeal as follows:-
1. Whether the learned trial Chief Judge did not act in breach of the appellants’ right to fair hearing when
(i) He re-assigned the suit to his Court without notifying the appellants,
(ii) He fixed a date for the case and proceeded immediately to entertain the 1st – 8th respondents motion for interlocutory injunction without notifying the appellants, and
(iii) He ignored the appellants’ counter-affidavit in opposition to the 1st – 8th respondents’ motion for interlocutory injunction? (Distilled from grounds 1, 2, 3, and 5).
2. Did the learned trial Chief Judge give due consideration to the evidence before him and the basic principles applicable for the grant of interlocutory injunction when he granted the 1st – 8th respondents’ motion for interlocutory injunction? (Distilled from grounds 4 and 6).

The 1st – 8th respondents and 9th – 10th

respondents ostensibly adopted two issues formulated by the appellants.

The facts of the case as encapsulated in the appellants’ brief are that the 1st – 8th respondents instituted the suit at the lower Court on 31st August, 2017. When the suit was instituted up to part of September, 2017 the High Court of Cross River was on 2017/2018 annual legal vacation. Accordingly the suit was assigned to the vacation judge, Hon. Justice S. M. Anjor. Thus, the matter came before Justice Anjor for the first time on Thursday, the 7th of September, 2017 and on which date learned counsel to the claimants (now 1st – 8th respondents) Ntufam S. A. Mgbe drew the Court’s attention to the fact that he had a motion exparte for interim injunction. The vacation judge directed that the defendants be put on notice and adjourned the matter to 12th September, 2017 for motion on notice. On that same date the claimants arranged and had the 1st, 2nd, 3rd, 4th, 6th and 7th defendants now appellants served with the processes in the suit. The 5th defendant was not served but on 11th September, 2017 all the appellants herein entered appearance but objected to the

hearing of the suit or any application during vacation because they were within the time allowed by the rules of Court. Consequently, the vacation judge returned the case to the then Acting Chief Judge, who re-assigned the case to himself and fixed it for Monday 30th October, 2017.

The appellants herein were neither served with hearing notice nor notified that the case was re-assigned to the Chief Judge and that it was fixed for hearing of the motion. Hence they were absent but the claimants who were aware of the development in the matter were present. The clerk of the Court drew the attention of the Court to the fact that the defendants/appellants have filed and served memorandum of appearance but were not in Court. He however failed to inform the Court that the defendants were not notified of the re-assignment and the hearing date as there was no proof of service on them. Notwithstanding the observation of the trial Court that only the 1st defendant had been properly served and no proof of service on other defendants, he proceeded and heard the matter and granted the said interlocutory orders on the pretence that the application was unopposed. That the

ruling was not delivered on 7th November 2017 as that was the date the appellants herein became aware that the matter was re-assigned to Chief Judge and then announced appearance in protest. And that the learned trial Chief Judge completely ignored the appellants’ counter-affidavit and motion for extension of time filed on 7/11/2017 and proceeded to deliver his ruling not on 1/11/2017 or 7/11/2017 as purportedly shown but on 14th November, 2017 and the suit adjourned to 9th, 10th and 15th January, 2018 for hearing.

Proffering argument on the first issue, learned counsel for the appellants contend that it was the right of the appellants herein to be afforded opportunity of been heard in the matter. That is, the right to be given notice that the case had been reassigned to the Honourable Chief Judge’s Court and also to be served with hearing notice of the matter and all subsequent dates they were not in Court. He thus submits that the existence of a counter-affidavit in opposition to the motion which learned counsel to the claimants tendered to impress upon the trial Court and which the learned trial chief Judge harped on; is not a desideratum

for the Court not given the appellants the opportunity to be heard. He referred to ASUQUO V. ESHIET (2008) ALL FWLR (prt 401) 1970 at 1983, WIMPEY LTD V. BALOGUN (1986) 3 NWLR (prt. 28) 324 at 333 and OBIMONURE V. ERINOSHO & ANOR (1966) ALL NLR 245 at 458 on the imperativeness of affording parties reasonable opportunity to be heard in the matter which is a recipe of fair hearing that can neither be negotiated nor compromised on any ground.

He submits further that the appellants having shown that they were not aware that the suit was re-assigned and also shown that they received no hearing notices in respect of all the proceedings that culminated to the ruling on the said motion, the appellants have discharged the burden placed on them to prove that there was a breach of their right to be heard.

Learned counsel also contend that the appellants filed a counter affidavit accompanied with a motion for extension of time to regularize it on 7/11/2017 in efforts to show that appellants had a defence and desirations of opposing the motion but the learned trial Chief Judge completely ignored both the pending motion and the counter affidavit. He made no

allusion to the fact that such processes were before him. He submits that the learned trial Chief Judge had a duty to consider and rule on the motion and also to consider the counter-affidavit in his consideration and determination of the motion for interlocutory injunction. The failure to do so according to the learned senior counsel amounted to further breach of the appellants’ right to fair hearing. In aid, he referred and relied on the authorities in HARRODS LTD V ANIFALAJE (1986)5 NWLR (prt 43) 603 at 611; ENEBELI V CBN (2006)9 NWLR (prt 984) 69 at 78-79; and ODEDO V PDP (2016) ALL FWLR (prt 815) 201 at 224 – 226, to the effect that had the learned trial Chief Judge considered the counter-affidavit and the processes that accompanied it; he would have refused to grant the motion for interlocutory injunction.

On the second issue, learned senior counsel for the appellants contend that contrary to the impression given in the ruling on appeal that the application was unopposed, the appellants filed a 29 paragraphs counter-affidavit in opposition to the motion on 7/11/2017 together with 10

exhibits and written address and thus it was wrong for the learned trial Chief Judge to reach a conclusion that the application is unopposed. He submits that interlocutory injunction which usually last for a short moment to keep matters in status quo, pending the happening of an event i.e. hearing of the motion for interlocutory injunction. Interlocutory injunctions are near permanent in nature which last till the determination of the suit that may take years and hence the Courts insist on the observance of the rule of fair hearing. He referred to Section 36 of the 1999 Constitution and the case of KOTOYE V. CBN (1989)1 NWLR (prt 98) 419 in contending that the learned trial chief judge did not and could not have determined the motion for interlocutory injunction without making facts and evidence on both sides to see where the balance of convenience tilt.

In further argument, learned counsel submits that the grant of the application has the effect of reversing rather than maintaining the status quo. And also the order wittingly and unwittingly decided the substantive reliefs in the suit. He referred to OWOI V. WILSON (2006) ALL FWLR (prt 320) 1155 at 7169

to the effect that Courts do not make the practice of deciding at the interlocutory stage what is meant for determination in the substantive suit.

In his response to the first issue, learned counsel to the 1st – 8th respondents contend that the originating processes were duly served on the appellants on 11/9/2017 including the motion for interlocutory injunction. He submits that a party who has been duly served with Court process is presumed to know that judicial process has been invoked against him and is supposed to be vigilant and not to go to sleep.

Still in contention, learned counsel argued that the appellants were bound to file their defence within 14 days and at worst, not later than 30 days from the date of service that is 11/9/2017. He referred to Order 17 Rule 21 (2) of the Cross River State High Court Civil Procedure Rules 2008.

He further contend that the appellants purported counter-affidavit filed on 7/11/2017 contains no application for extension of time and even then it was filed when the motion for interlocutory injunction had already been moved and adjourned for ruling. He referred to Order 21 Rule 3 of the extant rules

of Court which provides that a party intending to oppose a motion after being duly put on notice must do so within seven days of receipt of such application, though he may apply for extension of time under Order 5 Rule 4 thereof. He submits that the appellants’ counter-affidavit which was not regularized was therefore not properly before the lower Court and the learned trial Chief Judge whose attention was not drawn to it did not deny the appellants their right to fair hearing. He referred to NEWSWATCH COMMUNICATIONS LTD V ALHAJI ALIYU ATTA NSCQR Vol 21 (prt 1) 443 to the effect that fair hearing entrenched in Section 33 of the 1979 Constitution and now Section 36 of 1999 Constitution is not for the weakling, the slumberer, the indolent or the lazy litigant but for the party who is alive and kicking in the judicial process.

Respecting the second issue, learned counsel referred to the averment in paragraphs 6, 7, 10, 11, 15, 19, 28 and 30 of the affidavit in support of the motion on notice to contend that the applicants have placed sufficient materials for the grant of the application and that the learned trial Chief Judge had

considered the facts in granting the orders sought. He referred to N.N.S. LTD V. ESTABLISHMENT VADUZ (1990)12 SCNJ 36 in submitting that in any matter requiring the exercise of the Court’s discretion, the facts deposed in the supporting affidavit are the deciding factors.

On the part of the 9th and 10th respondents, learned counsel merely concedes to the appeal without proffering any argument and thus adopts the argument of the appellants.

RESOLUTIONS:
The right to fair hearing is a fundamental right of a party to a dispute to be afforded an opportunity to present his case to the adjudicating authority and this authority dispersing arbitration or resolution of disputes need not to be the regular Court as we know it but anybody so composed and filling the gap adjudicatorily. The touchstone for determining the observance of fair hearing is not the question whether any injustice has been occasioned on any party due to want of hearing. It is rather the question whether an opportunity of hearing was afforded to parties entitled to be heard. See OLAYIOYE V OYELARANI (2019)4 NWLR (prt 1662) 351 at 373.

The appellants’ contention in this case is that they were denied opportunity of being heard by the trial Chief Judge in the sense that they were neither notified of the fact that the trial Chief Judge has re-assigned the matter to himself and that they received no hearing notice in respect of the hearing of the motion for interlocutory injunction.

There is no disputing the fact that the defendants now appellants were served with the processes in the suit on 7/9/2017 wherein they entered appearance on 11/9/2017. When the matter came up the following day being 12/9/2017, counsel to the appellants herein objected to the hearing of the motion for not being ripe for hearing, amongst other reasons. It was upon the above representation that the vacation judge S. M. Anjor, J. returned the case file to the Chief Judge who was then acting for re-assignment.

It was however the contention of the appellants that the learned trial Chief Judge re-assigned the case to himself without any notice to them and that the motion came up before him for the first time on Monday, 30th October, 2017 also without notice to the appellants. At pages 158 – 159 of the record of appeal, the

Court observed as follows:-
“Court: It is only the 1st defendant who had been properly served and I am satisfied. The other proof of service is not it and if it is not it cannot be it. I am satisfied.”

In view of the above, learned counsel for the claimants, Ntufam Mgbe responded thus:
“Ntufam Mgbe: In the circumstances, may we apply to have the names of the other defendants struck out. The 1st defendant is the alter ego.

The Court acceded to counsel’s request in the following words:
“Court: As applied for by the claimants, the names of the 2nd and 9th defendants be and are hereby struck out. That is my order.”

Premised on the above, learned claimants’ counsel moved the motion on notice filed on 31/8/2017 and after which the Court inquired whether there is any counter-affidavit and the Court’s clerk responded:
“Clerk: There is no counter-affidavit. However, I have seen proofs of service on the other defendants.”

It was based on the clerk’s response that claimants’ counsel turned around and prayed as follows:-
“Mgbe: That being the case,

may the names of other defendants struck out for want of service be restored.”

The Court agreed and granted the request thus:
“Court: They are accordingly restored. My order.”

The crucial issue here is which proof of service did the clerk saw which was not there before? I have stated earlier that there was proof of service of the originating processes prior to the re-assignment and that the contention of the appellants is that they were not put on notice after the vacation judge recused himself from the case. It is thus my view that without been specific, that proof of service cannot be for hearing of the motion in question.

In the instant case, the failure to notify the appellants of the fact that the

matter was re-assigned and also serving them with the hearing notice for the hearing of the motion on notice, not only breached their right of fair hearing but deprived the lower Court of the requisite jurisdiction. This is so because service of hearing notice on the appellants was a precondition to the exercise of jurisdiction and basic to the invocation of the jurisdiction of the Court.

It was also the contention of the appellants that the learned trial Chief Judge had a duty to consider their counter-affidavit in the consideration and determination of the motion for interlocutory injunction, being the subject of this appeal.

established for adjudication of two or more competing interests have a legal duty to hear applications before it. The applications may not have any merits. They could be bogusly and inelegantly framed but once there is some legal basis for the applications, a Court of law is bound to entertain them.”

It is on record that the appellants have filed a counter-affidavit which coincidently was the very date the motion for interlocutory injunction was heard and adjourned for ruling. At pages 1 – 3 of the additional record of appeal, learned counsel for the appellants put spirited efforts to set aside the proceedings of the Court on that date but to no avail.

The denial of fair hearing to a party is fatal to the judgment. It renders the proceedings null and void. When there had been a denial of fair hearing, miscarriage of justice is presumed to have been occasioned to the party denied fair hearing. See N.U.T TARABA STATE V. HABU (2018) 15 NWLR (prt 1642) 381 at 392.
In the instant case, the lower Court denied appellants fair hearing and thereby suffered miscarriage of justice. I therefore resolved the first issue in favour of the

appellant.

The second issue being a fall out of the first issue, the appellants’ compliant is that had the learned trial judge considered the motion side by side its opposition, it would not have granted the interlocutory injunction as the balance of convenience tilt more in favour of the appellants. And that the grant of the said interlocutory injunction determined the substantive suit.
The purpose of an interlocutory application is generally to keep the parties to an action in Court in a position of status quo ante bellum and in that way preserve the res the subject matter of litigation. See OBEYA MEMORIAL HOSPITAL V. A.G. FEDERATION (1987) 3 NWLR (prt 60) 325.
I have reproduced the proceedings of the lower Court on 30/10/2017 and it is manifest that the learned trial Chief Judge heard arguments solely from 1st – 8th respondents’ counsel and even when the appellants have filed a counter-affidavit on 7/11/2017 which fact the lower Court ruled otherwise. At page 161 of the record of appeal, learned trial Chief Jude found as follows:
“The defendants, who had been served as per the proofs of service comfortably resting in my

file, have not reacted in any material particular. In the result and there being no other option, the applicants argued and moved their motion on the 30th day of October, 2017.
He continued-
“The mere fact that the respondents had lethargically not reacted is not a sure precipe for a walk over by the applicants. No. That is for the world of a football match. It is a different ball game in judicial proceedings.”
The above findings is clearly not borne by the record as the appellants have put in a spirited efforts to be heard on level playing ground. It is patently clearly that the learned trial Chief Judge anchored the ruling of the Court strictly and merely on the fact that the appellants have been served and opted to stay back without more. It seem to me that he has jettisoned all the known principles of law governing the grant of interlocutory injunctions which is that the other side must be given opportunity to be heard in opposition to the said application. Hearing in my respectful view cannot be fair if Court as done in this case, decides a case only on the evidence of the other side. In GEVER V. CHINA (1993) 9 NWLR (prt 315) 97

at 106 it was held that a mere absence of the appellant from the Court on the day fixed for hearing of the respondent’s application for interlocutory injunction did not mean that he had no defence to offer.
Considering what played out in Court on 30/10/2017, I make bold to say that it goes contrary to the laid down principles of fair hearing in Section 36 (1) of the 1999 Constitution (as amended) which provides that whenever the need arises for the determination of the civil rights and obligation of every citizen, the person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law.
Learned counsel for the appellants has submitted and I endorse his submission that the interlocutory order granted by the learned trial Chief Judge has the effect of determining the substantive suit.
The trial Court as well as the intermediate Courts should desist from making positive pronouncement touching on the substantive issue while they engage in determination of interlocutory matters before them. See UDOH V. ASUQUO (2006) 9 NWLR (prt 985) 299, AKAPO V. HAKEEM HABEEB (1992)6 NWLR (prt 247) 266,

DINGYADI V. INEC (NO.2) (2010)18 NWLR (prt 1224) 154, OMNIA (NIG) LTD V. DYKTRADE (2007)15 NWLR (prt 1018) 576 and STATOIL (NIG) LTD V. INDUCON (NIG) LTD (2018)9 NWLR (prt 1625) 586. I also resolved the second issue in favour of the appellant.

In the final analysis, this appeal is meritorious and is therefore allowed. I discharge the order of interlocutory injunction granted by the lower Court on 7th and 14th November, 2017. Costs of N100,000.00 is awarded to the appellants against 1st – 8th respondents.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have read the privilege of reading in draft the judgment delivered by my learned brother Muhammad L. Shuaibu, JCA. My learned brother has carefully dealt with the two (2) issues nominated for determination of this appeal.
I agree with the reasoning and conclusion reached in the judgment. I also allow the appeal. I abide with the consequential order and the order as to costs.

HAMMA AKAWU BARKA, J.C.A.: It was my privilege to have read in draft the judgment of my learned brother MUHAMMAD L. SHUAIBU, JCA.
I agree with the reasoning and the inevitable conclusion reached allowing the appeal. I endorse all orders

made in the lead judgment including orders on costs.

Appearances:

Mba E. Ukweni, SAN, with him, E. O. Abba For Appellant(s)

A. Mgbe Esq. – for 1st – 8th Respondents.
Anthony Effiong Esq. – for 9th – 10th Respondents For Respondent(s)