ASHIMI & ORS v. NPA & ORS (2020)

ASHIMI & ORS v. NPA & ORS

(2020)LCN/14225(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, May 29, 2020

CA/L/998B/2014

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

ASHIMI K. 2. EKANG J.O. 3. THOMPSON K.U 4. MOZIMO D. 5. BRODERICK P.A. 6. EZIKPE S.O 7. S.E. NWOSU 8. B.E. AKPAN 9. C.N. MBAKA APPELANT(S)

And

NIGERIAN PORT AUTHORITY 2. S.O. NTUKS 3. C.I. NWORIGU 4. E. OKOCHA 5. A. ADUBE 6. C. AKUKAM 7. J. ONI 8. IKUJORE 9. C.C. OFOHA 10. S. ABA (FOR THEMSELVES AND ON BEHALF OF NPA RETRENCHED STAFF JUNE, 1991) RESPONDENT(S)

RATIO

WHAT IS A PRELIMNARY OBJECTION?

A preliminary objection is a specie of objection which, if sustained by a Court, will render further proceedings in a matter unnecessary, see Abe v. Unilorin (2013) 16 NWLR (Pt. 1379) 183; APC v. INEC (2015) 8 NWLR (Pt. 1462) 531; Jim-Jaja v. C.P, Rivers State (2013) 6 NWLR (Pt. 1350) 225. For this reason, the law commands the Court to deal first with a preliminary objection when raised in any proceedings, see Uwazurike v. A.-G., Fed. (2007) 8 NWLR (Pt. 1035) 1; B.A.S.F. (Nig.) Ltd v. Faith Enterprises Ltd. (2010) 4 NWLR (Pt. 1183) 104; SPDCN Ltd v Amadi (2011)14 NWLR (Pt. 1266) 157; FBN Plc v. T.S.A. ind. Ltd (2010) 15 NWLR (Pt. 1216) 247; Okereke v. James (2012) 16 NWLR (Pt. 1326) 339; APC v. INEC (Supra); Ogboru v. Uduaghan (2013) 1 NWLR (Pt. 1311) 357; Efet v. INEC (2011) 7 NWLR (Pt. 1247) 423; Sa’eed v. Yakowa (2013) 7 NWLR (Pt. 1352) 133; Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113; SPDCN Ltd. v. Agbara (2016) 2 NWLR (Pt. 1496) 353; Agbaje v. INEC (2016) 4 NWLR (Pt. 1501) 151; Allanah v. Kpolokwu (2016) 6 NWLR (Pt. 1057) 1; Umanah (Jnr.) v. NDIC (2016) 14 NWLR (Pt. 1533) 458; Esuwoye v. Bosere (2007) 1 NWLR (Pt. 1546) 256; Achonu v. Okuwobi (2017) 14 NWLR (Pt. 1584) 142. PER OGBUINYA, J.C.A.

WHEN IS A COURT SAID TO BE VESTED WITH JURISDICTION TO ADJUDICATE ON A MATTER

Jurisdiction, a mantra in adjudication: connotes the authority/power of a Court to determine a dispute submitted to it by contending parties in any proceeding, see Ajomale v. Yaduat (No. 1) (1991) 5 SCNJ 172; Mobil Pro. Co. Unltd v. LASEPA (2002) 18 NWLR (Pt. 798) 1; Ndaeyo v. Ogunaya (1977) 1 IM SLR 300; Ebhodaghe v. Okoye (2004) 18 NWLR (Pt. 905) 472; Society Bic S.A. v. Charzin Ind. Ltd. (2014) 4 NWLR (Pt. 1398) 497; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 114; A. – G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175; Angadi v. PDP (2018) 15 NWLR (Pt. 1641)1.
A Court of law is invested with jurisdiction to hear a matter when: 1. it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and 2. the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and 3. the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction, see Madukolu v. Nkemdilim (2006) 2 LC 208/(1961) NSCC (vol. 2) 374 at 379, per Bairamian F. J., Tukur v. Taraba State (1997) 6 SCNJ 81; Dairo v. UBN (2007) 16 NWLR (Pt. 1029) 164; Okereke v. Yar’Adua (2008) 12 NWLR (Pt. 1100); Saraki v FRN (2016) 3 NWLR (Pt. 1500) 531; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80: Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Okpe v. Fan Milk Plc. (2017) 2 NWLR (Pt. 1549) 282; Bello v. Damisa (2017) 2 NWLR (Pt. 1550) 455; Osi v. Accord Party (2017) 3 NWLR (Pt. 1553) 387. These three ingredients must coexist in order to vest jurisdiction in a Court. PER OGBUINYA, J.C.A.

THE PRINCIPLE OF FAIR HEARING

Fair hearing connotes a trial which is conducted in accordance with all the legal rules formulated to ensure that justice is done/dished out to parties to the cause, see Eze v. FRN (2017) 15 NWLR (Pt. 1589) 433; Ardo v. INEC (2017) 13 NWLR (Pt. 1583) 450; Regt. Trustees, P.C.N. v. Etim (2017) 13 NWLR (Pt. 1581) 1; Akingbola v. FRN (2018) 14 NWLR (Pt. 1640) 395. Due to its olympian status in the appeal, it is germane to display some of the notable features of fair hearing – a mantra which, nowadays, competes with jurisdiction for prominence in adjudications.
The ancient concept of fair hearing traces its paternity to divinity. It was a common law doctrine which has metamorphosed into the corpus of our jurisprudence and firmly entrenched in Section 36(1) of the Constitution as amended. It donates to the citizens the inviolable right to ventilate their grievances on the altar of the two concrete pillars of natural justice to wit: audi alteram partem – hear the other side and nemo judex in causa sua – no one should be a judge in his own case. The whole essence of fair hearing, which is coterminous with fair trial, connotes giving parties to any proceedings, be it judicial or administrative, an equal opportunity to present their cases. It follows that fair hearing is totally divorced from correctness of a decision. It centres on the cardinal principle that a fair-minded person who watched the proceedings, before a Court or administrative or quasi judicial body, should conclude that it exhibited even handedness/fairness in apportioning justice to the feuding parties, see O.O.M.F. Ltd v. NACB (2008) 12 NWLR (Pt. 1098) 412; Nwanegbo v. Olawole (2011) 37 WRN 101; Kim v. State (1992) 4 NWLR (Pt. 233) 17; Newswatch Comm. Ltd. v. Atta (2006) 12 NWLR (Pt. 993) 144; FRN v. Akabueze (2010) 17 NWLR (Pt. 1223) 525; S & D Const. Co. Ltd. v. Ayoku (2011) 13 NWLR (Pt. 1265) 487; Ovunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522; Nigeria Navy v. Labinjo (2012) 17 NWLR (Pt. 1328) 56; J.S.C., Cross River State v. Young (2013) 11 NWLR (Pt. 1364) 1; Mpama v. FBN Plc (2013) 5 NWLR (Pt. 1346) 176; Abah v. Monday (2015) 14 NWLR (Pt. 1480) 569; Gov., Zamfara State v. Gyalange (2013) 8 NWLR (Pt. 1357) 462; Achuzia v. Ogbomah (2016) 11 NWLR (Pt. 1522) 59; Danladi v. Dangari (2015) 2 NWLR (Pt. 1442) 124; Labour Party v. Bello (2017) 2 NWLR (Pt. 1548) 148; Darma v. Ecobank (Nig.) Ltd. (2017) 9 NWLR (Pt. 1571) 480. PER OGBUINYA, J.C.A.

FACTORS TO GUIDE THE COURT TO ENSURE THE FAIR HEARING OF THE RIGHT OF PERSONS AFFECTED
The apex Court, in Baba v. Civil Aviation (1991) 7 SCNJ (Pt. 1) 1 at 24/(1991) 5 NWLR (Pt. 192) 388 at 423, per Nnaemeka-Agu, JSC, evolved the parameters to guide the Court to ensure fair hearing to include the right of the person to be affected:
(i) to be present all through the proceedings and hear all the evidence against him;
(ii) to cross-examine or otherwise confront or contradict all the witnesses that testify against him;
(iii) to have read before him all the documents tendered in evidence at the hearing;
(iv) to have disclosed to him the nature of all relevant material evidence, including documentary and real evidence, prejudicial to the party, save in recognised exceptions;
(v) to know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence; and
(vi) to give evidence by himself, call witnesses if he likes, and make oral submissions either personally or through a counsel of his choice.
See also JSC, Cross River State v. Young (2013) 11 NWLR (Pt. 1364) 1; Eze v. FRN (supra); Olayioye v. Oyelarin 1 (2019) 4 NWLR (Pt. 1662) 351; La Wari Furniture & Baths Ltd. v. FRN (supra); S & D Const. Co. Ltd. v. Ayoku (supra). PER OGBUINYA, J.C.A.

WHETHER OR NOT THE REFUSAL OF AN APPLICATION AMOUNTS TO BREACH OF FAIR HEARING

It is wrong for a litigant to couch as a ground of appeal an alleged breach of fair hearing because, a particular application, properly contested and argued before the lower Court was refused. Ingrained in such proposition as a ground of appeal is a supposition that the lower Court was bound to grant the application which was contested by the adverse party. Where the lower Court, in its decision, dismissed a process or application it duly heard, a ground of appeal founded on such a decision and couched as a breach of fair hearing is one which was based on a false hypothesis as the decision could only be challenged on the reasons based on the processes filed by both parties and not that the Court breached the Appellant’s right to fair hearing simply because, the application was refused.
A ground of appeal that challenges the exercise of the Court’s discretionary powers can hardly be pigeon holed into in the provision of Section 36(1) of the Constitution as the considerations for both legal principles are different.
I agree with the decision that the appeal lacked merit and should be dismissed.
I too dismissed the appeal and abide with the consequential order made as to costs. PER KOLAWOLE, J.C.A.

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal interrogates the decision of the National Industrial Court of Nigeria, Lagos Division (hereinafter addressed as “the lower Court”) coram judice: Oyebiola O. Oyewumi, J., in Suit No. NICN/LA/171/2013, delivered on 27th May, 2014. Before the lower Court, the appellants and the respondents were the applicants and the respondents respectively.

The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity. In the first place, it must be placed on record, pronto, that the res in this appeal is not a stranger to litigation. Indeed, it is a magnet for litigation. This is an offspring of one of them. Way back in 1991, the first respondent retrenched about 301 of its staff without payment of their gratuities and pensions. Sequel to the denial, the second-eleventh respondents, as representatives of the laid off staff, including the appellants, sued the first respondent, in the High Court of Lagos State, presided over by A. R.A. Sahid, J., in Suit No. LD/1827/92, and obtained judgment against it. The suit meandered to the Supreme Court of

Nigeria which affirmed the judgment on 11th May, 2007. The first respondent failed to comply with the judgment. As a result, the second-eleventh respondents beseeched Federal High Court, Lagos Division, via an originating summons filed on 5th May, 2008, for its enforcement.

Before the determination of the suit, the Federal High Court lost jurisdiction over the subject-matter which necessitated its transfer to the lower Court that acquired jurisdiction over it. The hearing of the suit commenced in the lower Court in March, 2013. The lower Court encouraged parties to settle the matter amicably. The parties reaped from the encouragement and began negotiations towards out-of-Court-settlement. The second-eleventh respondents and their unnamed representatives became divided on the quantum of sum to be paid by the first respondent. The disagreement occasioned about three splinter groups, the appellants being one of them, which rejected the Memorandum of Understanding (MOU) proposed by the second-eleventh respondents. The controversial MOU was used to draw the terms of settlement for the parties “with the exemption of those who have insisted on further

litigation”. The terms of settlement were filed on 25th March, 2014. On 27th March, 2014, the lower Court made the terms of settlement consent judgment for the parties.

Prior to the consent judgment, the appellants had, on 16th January, 2014, filed an application to change counsel for the second-eleventh respondents. The application was duly heard by the lower Court on 27th March, 2014 as shown at pages 299-303 of the main record. In a considered ruling delivered on 27th May, 2014, pasted at pages 306-309 of the main record, the lower Court dismissed the application.

The appellants were dissatisfied with the decision. Hence, on 22nd August, 2014, the appellants lodged a 5-ground notice of appeal which is copied at pages 310-315 of the record. Subsequently, with the leave of Court, the appellants filed an amended notice of appeal on 22nd March, 2016 and deemed properly filed on 27th September, 2016, which warehouses five grounds, wherein they prayed for the following reliefs:
(a) An order setting aside the Decision of the HonourabIe Justice O.O. Oyewunmi delivered on 27th day of May, 2014.
(b) An Order granting leave to the

Appellants to change their legal practitioners from the law firm of Dokun Makinde of Dokun Makinde & Co., of 118/120 Broad Street, Lagos to the law firm of Jusgate Solicitors & Partners of 24 Rafiu Babatunde Road, Amuwo Odofin, Lagos.
(c) An Order remitting the matter to another justice of the National Industrial Court.

Thereafter, the parties, through their learned counsel, filed and exchanged their respective briefs of argument in line with the procedure governing the hearing of civil appeals in this Court. The appeal was heard on 11th March, 2020.

First respondent’s preliminary objection
The first respondent greeted the appeal with a notice of preliminary objection, filed on 7th June, 2017, which prayed the Court to strike out the appeal, on grounds of incompetent, on the following grounds:
1. Appellants’ appeal against the exercise of discretion by the Honourable Justice O. Oyewumi of the National Industrial Court, Lagos Division (Lower Court) is an appeal on grounds of mixed law and facts for which no Leave was sought from the Lower Court or this Honourable Court.
2. Appellants’ right to appeal

against the decision of the Lower Court is by virtue of Sections 243 (2) and (3) of the 1999 Constitution (As Amended) limited to appeals on the issue of fundamental rights as contained in Chapter IV of the 1999 Constitution (As Amended).
3. Grounds 1, 2, 3, 4 and 5 of the Notice of Appeal do raise issues of discretion and do not raise constitutional issues of breach of Appellants’ fundamental rights and are consequently incompetent grounds of appeal.

In arguing the objection, learned counsel for the first respondent (the objector), Ayodeji Awobiyide Esq., enumerated the importance of jurisdiction. He submitted that lack of it and breach of its procedure would render proceedings a nullity. He relied on Theobros Auto-Link Nig. Ltd. v. Bakely International Auto-Engineering Co. Ltd. (2013) 2 NWLR (Pt. 1338) 337; F.H.A v. Emelie (2013) 5 NWLR (Pt. 1347( 281; Onyeka v. Ogbonna (2013) 11 NWLR (Pt. 1366) 462; Madayedupin v. Oninoram (2013) 1 NWLR (Pt. 1334) 175. He asserted that the appellants’ grounds of appeal were based on exercise of discretion that involved mixed facts and law for which they ought to obtain leave of Court before filing

He described the grounds as incompetent because of failure to obtain leave of Court. He cited UBN PLC v. Sogunro (2006) 16 NWLR (Pt. 1006) 504; Nasir v. Bindawa (2006) 1 NWLR (Pt. 961) 355; He claimed that the only right of appeal was against the decision of the lower Court on fundamental rights. He referred to Section 243 (2) and (3) of the Constitution, as amended, Coca-Cola (Nig.) Ltd. v. Akinsanya (2013) 18 NWLR (Pt. 1386) 255; Ajibi v. Olaewe (2003) 8 NWLR (Pt. 822) 237; Bwai v. UBA PLC (2002) 4 NWLR (Pt. 758) 692; Skye Bank v. Iwu (2017) LPELR-42595 (SC) 1. He reasoned that the lower Court properly exercised its discretion and needed no interference. He cited Ibiyemi v. FBN PLC (2013) 17 NWLR (Pt. 848) 196; Oduyoye v. Lawal (2003) 3 NWLR (Pt. 807) 432; Udensi v. Odusote (2003) 6 NWLR (Pt. 817) 545. He maintained that the grounds were not based on violation of fundamental rights and so incompetent. He referred to Tukur v. Govt., of Gongola State (1989) 4 NWLR (Pt. 117) 517; Egbuonu v. B.R.T.C. (1997) 12 NWLR (Pt. 531) 29; Raymond Dongtoe v. CSC Plateau State (2001) 19 WRN 125; Peterside v. IMB (Nig.) Ltd. (1993) 2 NWLR (Pt. 278) 712.

6

On behalf of the appellants, learned counsel, C.J. Chukwuleta, Esq., submitted that the ruling was a final decision which was appealable as of right. He relied on Fidelity Bank v. M.T. Tabora (2008) 2 FWLR (Pt. 475) 4850; Omonuwa v. Oshodin (1985) 2 NWLR (Pt. 10) 924; Manhattan Ltd. v. Co-operative Dev. Bank (2008) 2 FWLR (Pt. 472). He stated the meaning of ruling as defined in Jegede v. Akande (2014) 16 NWLR (Pt. 1432) 73. He noted that a ruling was a decision under Section 318 (1) of the Constitution, as amended. He insisted that the appellants did not require leave to appeal against the decision. He posited that the appeal was competent. He asserted that the Court had jurisdiction to hear appeals on fundamental rights and other matters. He cited Skye Bank PLC v. Iwu (2017) 16 NWLR (Pt. 1590) 24.

Resolution of the preliminary objection
A preliminary objection is a specie of objection which, if sustained by a Court, will render further proceedings in a matter unnecessary, see Abe v. Unilorin (2013) 16 NWLR (Pt. 1379) 183; APC v. INEC (2015) 8 NWLR (Pt. 1462) 531; Jim-Jaja v. C.P, Rivers State (2013) 6 NWLR (Pt. 1350) 225. For this reason, the law commands

the Court to deal first with a preliminary objection when raised in any proceedings, see Uwazurike v. A.-G., Fed. (2007) 8 NWLR (Pt. 1035) 1; B.A.S.F. (Nig.) Ltd v. Faith Enterprises Ltd. (2010) 4 NWLR (Pt. 1183) 104; SPDCN Ltd v Amadi (2011)14 NWLR (Pt. 1266) 157; FBN Plc v. T.S.A. ind. Ltd (2010) 15 NWLR (Pt. 1216) 247; Okereke v. James (2012) 16 NWLR (Pt. 1326) 339; APC v. INEC (Supra); Ogboru v. Uduaghan (2013) 1 NWLR (Pt. 1311) 357; Efet v. INEC (2011) 7 NWLR (Pt. 1247) 423; Sa’eed v. Yakowa (2013) 7 NWLR (Pt. 1352) 133; Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113; SPDCN Ltd. v. Agbara (2016) 2 NWLR (Pt. 1496) 353; Agbaje v. INEC (2016) 4 NWLR (Pt. 1501) 151; Allanah v. Kpolokwu (2016) 6 NWLR (Pt. 1057) 1; Umanah (Jnr.) v. NDIC (2016) 14 NWLR (Pt. 1533) 458; Esuwoye v. Bosere (2007) 1 NWLR (Pt. 1546) 256; Achonu v. Okuwobi (2017) 14 NWLR (Pt. 1584) 142. I will obey this legal commandment so as not to insult the law. The objectors seek to terminate the appeal in limine on three vitriolic grounds as listed above. The import of the grounds is that this Court is not equipped with the jurisdiction to entertain the appeal.

Madukolu v. Nkemdilim (2006) 2 LC 208/(1961) NSCC (vol. 2) 374 at 379, per Bairamian F. J., Tukur v. Taraba State (1997) 6 SCNJ 81; Dairo v. UBN (2007) 16 NWLR (Pt. 1029) 164; Okereke v. Yar’Adua (2008) 12 NWLR (Pt. 1100); Saraki v FRN (2016) 3 NWLR (Pt. 1500) 531; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80: Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Okpe v. Fan Milk Plc. (2017) 2 NWLR (Pt. 1549) 282; Bello v. Damisa (2017) 2 NWLR (Pt. 1550) 455; Osi v. Accord Party (2017) 3 NWLR (Pt. 1553) 387. These three ingredients must coexist in order to vest jurisdiction in a Court.

The objector staked/erected its objection on the provision of Section 243 (2) and (3) of the Constitution, as amended. Due to the kingly position of the provision herein, it is germane to pluck it out, where it is domiciled in Constitution, ipsissima verba, thus:
(2) An appeal shall lie from the decision of the National Industrial Court as of right to the Court of Appeal on questions of fundamental rights as contained in Chapter IV of this Constitution as it relates to matters upon which the National Industrial Court has Jurisdiction.
An appeal shall

only lie from the decision of the National Industrial Court to the Court of Appeal as may be prescribed by an Act of the National Assembly;
Provided that where an Act or Law prescribes that an appeal shall lie from the decision of the National Industrial Court to the Court of Appeal, such appeal shall be with the leave of the Court of Appeal.
The provision, which is comprehension-friendly, has fallen for interpretation before the apex Court. In Skye Bank Plc v. Iwu (2017) 16 NWLR (Pt. 1590) 24 at 105-106, the oracular Nweze, JSC, incisively, declared:
In all, then, on a holistic interpretation of Sections 240 and 243 (1) of the 1999 Constitution, appeals lie from the trial Court to the lower Court, that is, all decisions of the trial Court are appealable to the lower Court: as of right in criminal matters, Section 254 c (5) 1(6) and fundamental right cases, Section 243 (2); and with the leave of the lower Court, in all other civil matters where the trial Court has exercised its jurisdiction, Sections 240 read conjunctively with Section 243 (1) and (4).
See also Cocoa (Nig.) Ltd. v. Akinsanya (2017) 17 NWLR (Pt. 1593) 74.

The five grounds, in the notice of appeal, which the objector seeks to impugn and expel, are warehoused in the appellant’s 5-leaf unpagenated amended notice of appeal filed on 22nd March, 2016. Being the cynosure of the onslaught, I will extract those grounds, derobed of their particulars, verbatim ac litteratim, as follows:
GROUND ONE
The learned Judge erred in law when she held that the suit is a representative action.
GROUND TWO
The Learned Trial Judge erred in law when she held that the Appellants have no right to counsel of their choice in a matter which the Supreme Court judgment of 2007 sought to be enforced in the Court had already prescribed individual enforcement of the judgment by each beneficiary of the judgment.
GROUND THREE
The Learned Trial Judge misdirected herself when she held that the Respondent’s Written address dated 24th March, 2014 which was filed out of time and without leave of Court was competent and proceeded to act on it.
GROUND FOUR
The learned Trial Judge misdirected herself when she held that the decision in the case of Chief Williams Vs. Emeka Nwosu 2001 3 NWLR PT. 700 pg. 376 at

pg 385 and the case of OKONJI & Ors v. NJOKANMA & Ors 1989 4 NWLR pt 114 at pg 167 were relevant in the case and relied heavily on the said decision to refuse the Appellants Motion for change of counsel.
GROUND FIVE
The Learned Trial Judge erred in law by foisting the memorandum of understanding entered into by the 2nd to 11th Respondents and the 1st Respondent on the Appellants when she had held that the Appellants are excepted from the consent judgment entered into on 27th day of March, 2014.
In total fidelity to the desire of the law, I have married these catalogued grounds, which are in the heat of expunction/decimation, with the inelastic position of the law displayed above. The raison d etre for the juxtaposition is simple. It is to ascertain whether those grounds are obedient to the law or rebellious to it. I have, in due obeisance to the law, given them a clinical examination with finery of a tooth comb. To my mind, the meat of the appellants’ grievance in grounds two and four, which are on all fours on their import, is that the lower Court’s

failure or neglect to treat their application for change of counsel, curtailed their inalienable right to fair hearing as entrenched in Section 36(1) of the Constitution, as amended. The right to fair hearing is one of the fundamental rights wrapped in Chapter IV of the Constitution, as amended. Ground one quarrels with lower Court’s finding that the suit is a representative action. Ground three chastises the lower Court’s usage of the first respondent’s written address which was incompetent. Ground five queries the lower Court’s finding that the memorandum of understanding was binding on the appellants.
It stems from these expatiations, that it is only grounds two and four that orbit around the four walls/perimeter of fundamental right. They are the only grounds that the appellants could appeal to this Court as of right as decipherable from the statutory and case-law authorities dissected earlier. In mind of the law, for grounds one, three and five, the appellants were required to seek and obtain the leave of this Court before filing them. Curiously, the appellants, in their infinite wisdom, starved this Court of any grain of

evidence of fulfillment of this inelastic requirement of the law.
In the sight of the law, leave, in this context, signifies permission, see S.U. Ojemen v. Momodu (1983) 1 SCNLR 188; Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 7181 (1987) 2 NSCC, Vol. 18, 1219; Garuba v. Omokhodion (2011) 14 NWLR (Pt. 1269) 145; Otu v. ACB Int’l Ltd. (2008) 3 NWLR (Pt. 1073) 179. Where leave of Court, trial or appellate, is required for filing an action/process and a party ignores seeking and obtaining the requisite leave before filing same, the action/process is rendered incompetent, seeUBA Plc. v. Sogunro (2006) 16 NWLR (Pt. 1006) 504; Garuba v. Omokhodion (supra); Thor Ltd. v. FCMB Ltd. (2002) 4 NWLR (Pt. 757) 427; Ugboaja v. Akitoye-Sowemimo (2008) 16 NWLR (Pt. 1113) 278; Akinyemi v. Odu’a Inv. Co. Ltd. (2012) 17 NWLR (Pt. 1329) 209; Okwuagbala v. lkwueme (2010) 19 NWLR (Pt. 1226) 54; Nwaolisah v. Nwabufoh (2011) 14 NWLR (Pt. 1268) 600; Njemanze v. Njemanze (2013) 8 NWLR (Pt. 1356) 376; Imegwu v. Okolocha (2013) 9 NWLR (Pt. 1359) 347; Ugwu v. State (2013) 14 NWLR (Pt. 1374) 257; Ngere V. Okuruket ‘xiv’ (2014) 11 NWLR (Pt. 1417) 147;

Ekunola v. CBN (2013) 15 NWLR (Pt. 1377) 224; Allanah v. Kpolokwu (2016) 6 NWLR (Pt. 1507) 1; Anachebe v. Ijeoma (2014) 14 NWLR (Pt. 1426) 168; B.B, Apugo & Sons Ltd. v. O.H.M.B. (2016) 13 NWLR (Pt. 1529) 6; Obasi v Mikson Est. Ind. Ltd. (2016) NWLR (Pt.1539) 335; Otti v Ogah (2017) 7 NWLR (Pt. 1563) 1; Sogunro v Yeku (2017) 9 NWLR (Pt. 1570) 290; Mato v. Hember (2018) 5 NWLR (Pt. 1612) 258.
It flows that the appellants’ neglect to obtain the leave, a costly failure, is that those grounds one, three and five are tainted with an indelible incompetence. The legal consequence of this incompetence is far-reaching. It impinges on the jurisdiction of this Court to entertain those grounds as they await for expulsion. The appellants crafted four issues for determination of the appeal. They monopolise leaves 4 and 5 of the unpagenated appellants’ brief of argument. While issue (i) traces its paternity to the competent grounds two and four, the incompetent grounds one, three and five mothered issues (ii)-(iv). The incompetence is contagious. It infects/stains the issues (ii) – (iv) and render them orphans and incompetent too.

The reason is not far-fetched. An incompetent ground of appeal cannot give birth to a competent issue, Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421; Umana (Jnr.) v. NDIC (2016) 14 NWLR (Pt. 1533) 456; Labour Party v. Bello (2017) 2 NWLR (Pt. 1548) 145; Sogunro v. Yeku (2017) 9 NWLR (Pt. 1570) 290; Mobil Producing (Nig.) Unltd. v. Johnson (2018) 14 NWLR (Pt. 1639) 329; A.T.S. & Sons v. B.E.C. (Nig.) Ltd. (2018) 17 NWLR (Pt. 1647) 1. The soiled issues (ii)-(iv) will share in the fate of the incompetent grounds one, three and five: the liability /burden of being struck out.

In the light of this brief legal anatomy, the preliminary objection, invented by the first respondent/objector to snuff life out of the appeal, at its embryo, is partially meritorious. I uphold it in part. Consequently, I declare grounds two and four and issue (i) as competent and valid. Grounds one, three and five and issues (ii) – (iv) are struck out for being incompetent. I will proceed to handle the appeal on the viable grounds two and four and issue (i) attendant thereto.

Consideration of the appeal
During the hearing of the appeal, on 11th March, 2020, learned counsel

for the appellants, C.J. Chukwuleta, Esq., adopted the appellants’ brief of argument and the appellants’ reply brief, both filed on 17th October, 2016 and 30th May, 2018 respectively, as representing his argument for the appeal. He urged the Court to allow it. Similarly, learned counsel for the first respondent, Ayodeji Awobiyide, Esq., adopted the first respondent’s brief of argument, filed on 7th June, 2017 and deemed properly filed on 8th June, 2017, as forming his reactions against the appeal. He urged the Court to dismiss it. The second-eleventh respondents filed no brief of argument despite the service of the processes on them.

In the appellants’ brief of argument, learned counsel distilled four issues for determination. It will be recalled that issues (ii) – (iv) were struck out based on the preliminary objection. The only issue (i), which survived the objection, reads:
Whether the trial Court was right to have refused the appellants’ motion for change of representation, application which touches on the Appellants constitutional right, on the ground that the suit is a representative action.

In the first respondent’s brief of argument, learned counsel adopted the issue with variation in semantics to wit: “Whether or not the dismissal of appellants’ motion on notice dated 16th January, 2014 was in breach of appellants’ right to fair hearing”.

Arguments on the issue
Learned counsel for the appellants submitted that the original suit was on representative capacity and the appellants had equal rights with their representatives and could change them when they compromised it. He relied on Ekennia v. Nkpakara (1997) 5 NWLR (Pt. 504) 152; Okonji v. Njokanma (1989) 4 WLR (Pt. 114). He posited that the lower Court’s decision was a breach of the appellants’ right to fair hearing. He claimed that the lower Court was under an obligation to grant the motion. He asserted that the lower Court breached the appellants’ right to fair hearing when it granted the consent judgment before hearing their application. He cited A-G, Fed. V. ICAN (2002) 10 NWLR (Pt. 776) 492. He concluded that the lower Court denied the appellants their right of fair hearing even when there were no plaintiffs. He referred to

Ogli Oko MemorialFarms Ltd. v. N.A.C.B Ltd. (2008) 4 SC 95.

On behalf of the first respondent, learned counsel argued that the appellants’ counsel was given audience and he argued the application. He reasoned that dismissal of the application did not translate to breach of fair hearing of the appellants. He cited Odigwe v. J.S.C., Delta State (2011) 10 NWLR (Pt. 1255) 255; Ukachukwu v. PDP (2014) 17 NWLR (Pt. 1435)134. He asserted that the second-eleventh respondents had the right to discontinue/compromise the representative action. He referred to Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587. He claimed that the lower Court heard the application judicially and judiciously.

Resolution of the issue
A clinical examination of the issue, amply, discloses, the hub of it. It castigates the lower Court’s dismissal of the appellants’ application for change of counsel as a denial of their right to fair hearing. The issue, though seemingly knotty, is canalised within a slim scope.
The appellants accused the lower Courts’ decision, as an erosion of their inviolable right to fair hearing as guaranteed/enshrined in

Section 36(1) of the Constitution, as amended. Fair hearing connotes a trial which is conducted in accordance with all the legal rules formulated to ensure that justice is done/dished out to parties to the cause, see Eze v. FRN (2017) 15 NWLR (Pt. 1589) 433; Ardo v. INEC (2017) 13 NWLR (Pt. 1583) 450; Regt. Trustees, P.C.N. v. Etim (2017) 13 NWLR (Pt. 1581) 1; Akingbola v. FRN (2018) 14 NWLR (Pt. 1640) 395. Due to its olympian status in the appeal, it is germane to display some of the notable features of fair hearing – a mantra which, nowadays, competes with jurisdiction for prominence in adjudications.
The ancient concept of fair hearing traces its paternity to divinity. It was a common law doctrine which has metamorphosed into the corpus of our jurisprudence and firmly entrenched in Section 36(1) of the Constitution as amended. It donates to the citizens the inviolable right to ventilate their grievances on the altar of the two concrete pillars of natural justice to wit: audi alteram partem – hear the other side and nemo judex in causa sua – no one should be a judge in his own case. The whole essence of fair hearing, which is coterminous with fair trial,

connotes giving parties to any proceedings, be it judicial or administrative, an equal opportunity to present their cases. It follows that fair hearing is totally divorced from correctness of a decision. It centres on the cardinal principle that a fair-minded person who watched the proceedings, before a Court or administrative or quasi judicial body, should conclude that it exhibited even handedness/fairness in apportioning justice to the feuding parties, see O.O.M.F. Ltd v. NACB (2008) 12 NWLR (Pt. 1098) 412; Nwanegbo v. Olawole (2011) 37 WRN 101; Kim v. State (1992) 4 NWLR (Pt. 233) 17; Newswatch Comm. Ltd. v. Atta (2006) 12 NWLR (Pt. 993) 144; FRN v. Akabueze (2010) 17 NWLR (Pt. 1223) 525; S & D Const. Co. Ltd. v. Ayoku (2011) 13 NWLR (Pt. 1265) 487; Ovunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522; Nigeria Navy v. Labinjo (2012) 17 NWLR (Pt. 1328) 56; J.S.C., Cross River State v. Young (2013) 11 NWLR (Pt. 1364) 1; Mpama v. FBN Plc (2013) 5 NWLR (Pt. 1346) 176; Abah v. Monday (2015) 14 NWLR (Pt. 1480) 569; Gov., Zamfara State v. Gyalange (2013) 8 NWLR (Pt. 1357) 462; Achuzia v. Ogbomah (2016) 11 NWLR (Pt. 1522) 59; Danladi v. Dangari (2015) 2 NWLR

(Pt. 1442) 124; Labour Party v. Bello (2017) 2 NWLR (Pt. 1548) 148; Darma v. Ecobank (Nig.) Ltd. (2017) 9 NWLR (Pt. 1571) 480.
The apex Court, in Baba v. Civil Aviation (1991) 7 SCNJ (Pt. 1) 1 at 24/(1991) 5 NWLR (Pt. 192) 388 at 423, per Nnaemeka-Agu, JSC, evolved the parameters to guide the Court to ensure fair hearing to include the right of the person to be affected:
(i) to be present all through the proceedings and hear all the evidence against him;
(ii) to cross-examine or otherwise confront or contradict all the witnesses that testify against him;
(iii) to have read before him all the documents tendered in evidence at the hearing;
(iv) to have disclosed to him the nature of all relevant material evidence, including documentary and real evidence, prejudicial to the party, save in recognised exceptions;
(v) to know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence; and
(vi) to give evidence by himself, call witnesses if he likes, and make oral submissions either personally or through a counsel of his choice.
See also JSC, Cross River State v. Young (2013) 11 NWLR

(Pt. 1364) 1; Eze v. FRN (supra); Olayioye v. Oyelarin 1 (2019) 4 NWLR (Pt. 1662) 351; La Wari Furniture & Baths Ltd. v. FRN (supra); S & D Const. Co. Ltd. v. Ayoku (supra).
Where a party’s sacred right to fair hearing is flouted, no matter the quantum of fair-mindedness, dexterity, artistry and objectivity injected into the proceeding hosting the breach, it will be mired in the ocean of nullity, see Nyesom v. Peterside (2016) 7 NWLR (Pt. 1512) 452; C.K & W. M. C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487; Eze v. Unijos (supra); Ezenwaji v. U.N.N. (2017) 18 NWLR (Pt. 1598) 485; Poroye v. Makarfi (2018) 1 NWLR (Pt. 1599) 91; APC v. Nduul (2018) 2 NWLR (Pt. 1602) 1; S.A.P. Ltd. v. Min., Petroleum Resources (2018) 6 NWLR (Pt. 1616) 391; Zenith Plastics Ind. Ltd v. Samotech Ltd. (2018) 8 NWLR (Pt. 1620) 165. This is a confluence point where want of fair hearing and jurisdiction embrace themselves to vitiate proceedings that give birth to denial of fair hearing, see O.O.M.F. Ltd. v. NACB Ltd. (supra); Ovunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522; Achuzia v. Ogbomah (supra); Apeh v. PDP (2016) 7 NWLR (Pt. 1510) 153; Abah v. Monday (2015) 14

NWLR (Pt. 1480) 569.
Now, the meat of the appellants’ chief grievance, indeed their trump card on the nagging issue, is that the lower Court’s failure to grant their prayer for change of counsel, in their application, occasioned a violation of their right to fair hearing. I have in due loyalty to the dictate of the law, consulted the records, the touchstone/bible of the appeal. The proceedings of the lower Court, whence the decision germinated, reside and colonise pages 361-365 of the main record. I have burrowed through them merciless scrutiny. Admirably, they are submissive to unambiguity. The proceedings, amply, showcase the active participation of learned counsel for the appellants, C.J. Chukwuleta, Esq., in the happenings in the lower Court on 27th March, 2014. In point of fact, the proceedings reveal that the learned appellants’ counsel was allowed to argue the application. Indeed, he enjoyed the double procedural advocacy: oral and written. In other words, the appellants, through counsel, proffered both oral and written submissions vis-a-vis their application with the corresponding response by their adversary’s

counsel. It flows from the foregoing, that appellants were heard on the application. They were accorded equal treatment, opportunity and consideration with their opponent, the first respondent, in the hearing of the application. It must be placed on record, apace, that the duty of the Court is to provide the enabling and hospitable environment and grant feuding parties equal chance to present their cases. It is, to my mind, decipherable from the unequivocal proceedings of 27th March, 2014 that the lower Court, in an unbiased manner, created a congenial atmosphere for the appellants to ventilate their grievances, change of counsel, as engrained in their application.
The appellants erected the gravamen of their grouse on the lower Court’s refusal of their application. The point must be underscored that their grudge is on a totally, different wicket. I think, with due reverence, learned appellants’ counsel mixed up the issues. Hearing a matter/application and the outcome of it are two divergent streams in the variegated tributaries of adjectival law. They are mutually exclusive. While the want of the former, in deserving circumstances, can

denude a party’s right to fair hearing, the latter may be impotent to impregnate it. The consequence is plain. The lower Court’s refusal to grant the appellants’ application cannot, under any guise or any stretch of elastic imagination, tantamount to an infringement of their non-forfeitable right to fair hearing as encapsulated in Section 36 (1) of the Constitution, as amended. This is because, they were heard before the decision of the lower Court was delivered, see Dec Oil & Gas Ltd. v. Shell (Nig) Gas Ltd. (2019) 14 NWLR (Pt. 1692) 273. In effect, the appellants’ inviolate right to fair hearing was not, in the least, fractured by the lower Court. It is, therefore, not available for them to harvest/harness from the sanctuary/vineyard of the beneficent provision of Section 36(1) of the Constitution, as amended. Thus, in Adebayo v. A. – G., Ogun State (2008) 7 NWLR (Pt. 1085) 201 at 221 and 222 the apex Court, per Tobi, JSC, admonished:
…The fair hearing provision in the Constitution is the machinery or locomotive of justice; not a spare part to propel or invigorate the case of the user. It is not a casual principle

of law available to a party to be picked up at will in case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case.
This magisterial pronouncement, in the ex-cathedra authority, with due respect, punctures and exposes the learned appellants’ counsel’s salivating argument on the point. It is disabled from birth it cannot fly.
In the light of this brief juridical survey, the lower Court’s decision, as it relates to the appellants’ application, is not guilty of the appellants’ pseudo-charge of breach of their right to fair hearing levelled against it. It may be faulted on the footing of other considerations. However, I am not oblivious of the fact that those other issues, which may have influenced it, were mowed down by the unbiased judicial sword of this Court and, de jure, ostracised from the appeal. On this score, all the strictures, which the appellants weaved and rained against the hearing of the application, are lame and

peter into insignificance. In the end, I am left with no option than to resolve the issue against the appellants and in favour of the respondents.

On the whole, having resolved the solitary issue against the appellants, the fortune of the appeal is obvious. It is devoid of ray of merit and deserves the penalty of dismissal. Consequently, I dismiss the appeal. The parties shall bear the respective costs they incurred in the prosecution and defence of the ill-fated appeal.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege to read the draft of the leading judgment which has just been delivered by my learned brother, Obande Festus Ogbuinya, JCA in which he upheld in part, the 1st Respondent’s Preliminary Objection raised against some of the grounds of appeal, and eventually dismissed the appeal as the surviving ground was based on false hypothesis that is not borne out of the decision of the lower Court.

of appeal is a supposition that the lower Court was bound to grant the application which was contested by the adverse party. Where the lower Court, in its decision, dismissed a process or application it duly heard, a ground of appeal founded on such a decision and couched as a breach of fair hearing is one which was based on a false hypothesis as the decision could only be challenged on the reasons based on the processes filed by both parties and not that the Court breached the Appellant’s right to fair hearing simply because, the application was refused.
A ground of appeal that challenges the exercise of the Court’s discretionary powers can hardly be pigeon holed into in the provision of Section 36(1) of the Constitution as the considerations for both legal principles are different.
I agree with the decision that the appeal lacked merit and should be dismissed.
I too dismissed the appeal and abide with the consequential order made as to costs.

BALKISU BELLO ALIYU, J.C.A.: My learned brother OBANDE FESTUS OGBUINYA, JCA availed me with the draft of the leading judgment just delivered.

I agree that the preliminary objection

of the Respondents has merit and I grant it.

I am also in agreement with the reasoning and conclusion reached in resolving the surviving lone issue for determination of the appeal and I adopt same as mine. I find no merit in this appeal. I dismiss it. I abide by the order of no cost made in the leading judgment. Appeal dismissed.

Appearances:

C.J. Chukwuleta, Esq. For Appellant(s)

Ayodeji Awobiyide, Esq. – for the 1st Respondent

No legal representation for the 2nd-11th Respondents For Respondent(s)