BARR. ROBERT OKWUEGO v. BARR. GREG OKEMILI & ANOR (2013)

BARR. ROBERT OKWUEGO v. BARR. GREG OKEMILI & ANOR

(2013)LCN/6178(CA)

In The Court of Appeal of Nigeria

On Friday, the 10th day of May, 2013

CA/OW/123/2012

JUSTICES

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

Between

BARR. ROBERT OKWUEGO Appellant(s)

AND

1. BARR. GREG OKEMILI
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)

RATIO

THE CONCEPT F ABUSE OF COURT PROCESS

Generally, in legal terms, abuse of judicial process simply means that the process of the Court has not been properly used or that it has been used mala fide. It is applicable in proceedings which is wanting in bona fides, so that the process of the Court has been used vexatiously, frivolously and oppressively, leading to the irritation and annoyance of the adversary. The circumstances and situations where it can be said that the judicial process has been abused are infinite.
It all depends on the circumstances of each case. See E.O.M. PLC v U.B.A. PLC (2010) 1 NWLR (Pt. 1176) p.583, YAKUBU v A.S. CO. LTD. (2010) 2 NWLR (Pt. 1177) p.167; DINGYADI v I.N.E.C (2011) 10 NWLR (Pt.1255) p.347.

THE FUNDAMENTAL RIGHT TO A HEAIR HEARING

One of the twin pillars of the principles of fair hearing is that, the Court must hear both parties to the Suit. The essence of the audi alteram partem principle is that, a verdict should not be entered against a man in a matter relating to his rights or obligations, without his being heard. A denial of the right to be heard or the opportunity to be heard is a breach of the rules of natural justice as enshrined in our Constitution. To determine whether the principles of fair hearing has been breached or denied a party in a particular case, an appellate court will consider the nature and circumstances surrounding the whole case, as manifested in the record of appeal. What the appellate court should concern itself with, is not the correctness of the decision, but whether the proper procedure was followed in a particular case. See F.R.N. v AKUBUEZE (2010) 17 NWLR (pt.1233) p.525. The burden is on the Appellant who alleges the breach of his right to fair hearing in a case, to prove the breach, which he must do in the light of the facts of the case. See MAIKYO v ITODO (2007) 7 NWLR (Pt.1034) p.443; AKULEGA v BENUE STATE C.S.C. (2001) 53 W.R.N. p.83; DANTATA & SAWOE CONST. CO. LTD v IBRAHIM (2003) 31 WRN p.80; ARIORI v ELEMO (1983) ALL N.L.R. p.1; CASSIDY v FEDERAL REPUBLIC OF NIGERIA (2002) 47 WRN. P.102 and LT. COL. AKINWALE v. NIGERIAN ARMY (2001) 16 NWLR (Pt.738) p.109. PER TSAMMANI, J.C.A.

WHETHER OR NOT A COURT MUST CONSIDER AND PRONOUNCE ON ALL APPLICATIONS FILED AND PENDING BEFORE IT

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court, Owerri Judicial Division; presided over by Hon. Justice F.A. Olubanjo, delivered on the 6th day of June, 2011.
The 1st Respondent; Greg Okemili; who was the candidate of the All Progressive’s Grand Alliance (A.P.G.A) in the election conducted by the 2nd Respondent on the 26/4/2011. The Appellant was the candidate of the Peoples Democratic Party (P.D.P). The election was to fill the position of member representing Oru East State Constituency in the Imo State House of Assembly. The 1st Respondent had thereafter, approached the Federal High Court vide an Originating Summons dated the 25/5/2011, but filed the 24/5/2011, praying the Court to answer the following questions:
1. Whether on a proper interpretation of Sections 64 and 75 of the Electoral Act 2010, the Defendant having announced the result, and declared the Plaintiff winner, is not duty bound to issue the Plaintiff Certificate of return.
2. Whether the delay in issuance of the said Certificate does not constitute neglect and requires an order of this Honourable Court to enable the swearing in of the Plaintiff as member representing Oru East State Constituency in the Imo State House of Assembly.
The Plaintiff/1st Respondent then prayed that if those questions are answered in the affirmative, the Court below should make:-
1. A Declaration that the inability of Defendant to have issued the Plaintiff with a certificate of return having signed, announced and issued the result since 26th April, 2011 constitutes a refusal or neglect.
2. An order that the Plaintiff is entitled to issuance of certificate of return.
3. An order directing the Defendant to issue the Plaintiff with the said Certificate of return having scored the highest number of votes and announced the winner by the returning officer since 26th day of April, 2011.
The Summons was originally issued against the 2nd Respondent (INEC) alone. Filed along with the Originating Summons was an Ex-parte Motion dated the 20/5/2011 and filed 24/5/2011, wherein, the 1st Respondent prayed, inter alia, for an order abridging the time for the hearing of the originating summons. There is nothing on the record of appeal to show that the said Ex-parte Motion was moved nor is there anything to show that it was granted. What the record shows is that, the matter was fixed for the 02/6/2011 but the learned trial judge of the Court below did not sit. The record however shows that, the 1st Respondent wrote a letter to the Court below, requesting that his matter be heard on the 06/6/2011 (the very day the letter was written) instead of the next adjourned date, which was the 07/6/2011. The Learned trial judge acceded to the request of the 1st Respondent, and proceeded to hear and determine the matter that same day; i.e. 06/06/2011, in which he granted all the reliefs sought by the 1st Respondent.
The Appellant’s case is that, he had filed a Motion on Notice dated the 01/6/2011 and filed the same day, in which he sought the order of the Court below, to be joined as a defendant in the Suit. It is apparent on the record that the trial Court did not consider the Motion of the Appellant before it hurriedly heard and delivered judgment in the matter, on the pre that the Appellant’s Motion was not brought to the notice of the learned trial judge before he heard and determined the matter. The Appellant felt aggrieved by the action of the learned trial Judge and decided to appeal to this Court.
I wish to observe that this appeal was initially heard on the 25/2/2013 and judgment therein reserved. In the process of writing the judgment, I found myself in a dilemma, as to whether or not the Notice of Appeal filed on the 03/5/2012 is competent. In the circumstances, parties had to be invited to address us on the competence or otherwise of the said Notice of Appeal. The parties did appear before us whereof we directed the parties to file affidavits in respect thereof, since the issue bordered substantially on facts. The Appellant filed his affidavit dated the 15/4/2013 and filed the same day; while the 1st Respondent filed a Counter-Affidavit dated and filed the 22/4/2013. Upon a careful reading of the affidavits of the Appellant and the 1st Respondent, it is established that.
1. Upon delivery of judgment in the Suit by the Court below on the 06/6/2011, the Appellant herein, filed a Notice of Appeal on the 09/6/2011 which was given Appeal No.CA/OW/195/2011.
2. Realising that the said Notice of Appeal was incompetent, the Appellant filed a Motion on Notice dated the 26/10/2011 and filed the 31/10/2011, wherein he sought for leave to appeal as a party interested or having interest in the matter. This fact is supported by paragraphs 1, 2, 3, 4 and 5 of the 1st Respondent’s Counter Affidavit.
3. The motion seeking for leave to appeal and for extension of time to appeal filed on the 31/10/2011 was however withdrawn and consequently struck out on the 24/01/2012. See paragraph 6 of the Counter Affidavit filed by the 1st Respondent.
It would be seen therefore as found above, the Notice of Appeal with Appeal No: CA/OW/195/2011, was from it’s inception incompetent, which then informed the filing of the Motion of 31/10/2011, seeking for leave to appeal and for extension of time to appeal. Appeal No.CA/OW/195/2011 could be described as having died on arrival and no amount of medication or resuscitation effort could have revived it. This is so because, it is the law that a Notice of Appeal is the very foundation of an appeal. The competence or otherwise of the Notice of Appeal therefore touches on the jurisdiction of the appellate court, because, if no proper Notice of Appeal is filed, it would mean that there is no appeal for the Court to entertain. See F.B.N. PLC v T.S.A IND. LTD (2010) 15 NWLR (Pt. 1216) p.247.

Flowing from the above observation, where leave is required to file a Notice of Appeal, but no such leave is obtained before the Notice of Appeal, is filed, such Notice of Appeal would be a nullity, and no leave of Court can be granted thereafter to file such Notice of Appeal already filed without leave. To do that would be like putting the cart before the horse. In other words, where Notice of Appeal is incompetent, no process can validly be hanged or founded on it. It is incurably defective, invalid and therefore incompetent. It would be considered as if it was never filed. See GENERAL ELECTRIC CO. v AKANDE (2010) 18 NWLR (Pt.1225) p.596; N.W.D.M. LTD. v. UFT ENGR. LTD (2011) 8 NWLR (Pt. 1249) p.308 at 327 and WILLIAMS v IBEJIAKO (2008) 15 NWLR (Pt.1110) p.367. It follows that, if a Notice of Appeal is invalid, it would mean that there is no valid appeal pending before the Court, and accordingly, no application for leave will validate such incompetent or invalid Notice of Appeal. One cannot put something on nothing and expect it to stand. See ASHCO NIG. LTD v. WARD and GREEN (2010) 3 NWLR (Pt. 1181) p.302. Applying the above stated principle, it would mean that Appeal No: CA/OW/195/2011, filed without leave of Court, was incompetent and therefore invalid. Consequently, the motion seeking for leave to appeal filed on the 24/2/2012 could not have been instituted to validate it. No wonder, an earlier application filed to validate same was withdrawn and struck out. It is therefore my firm view that, the motion filed the 24/2/2012 could not have been and was not meant to validate the incompetent and invalid Notice of Appeal which was given Appeal No: CA/OW/195/2011. That the order of Court made the 24/4/2012 referred to Appeal No: CA/OW/195/2011 is of no moment as the following facts as deposed to in the affidavits of the parties would show. Those affidavits disclose that:-
(a) The motion which gave rise to the Order of 24/4/2012 was given No: CA/OW/41M/2012 as the Appeal Number. See paragraphs 3 and 4 of the Appellant’s affidavit. However, the same motion was given No: CA/OW/46M/2012 in respect of the 1st Respondent as shown at paras. 5, 6 and 7 of the Appellant’s affidavit, and paras. 9, 11 and 12 of the 1st Respondent’s affidavit.
(b) It is clear from the affidavits of the parties that, the motion of 24/2/2012 did not specifically refer to Appeal No: CA/OW/195/2011. Though the motion was filed by the Registry in the file in respect of Appeal No: CA/OW/195/2011, I have already held that, it could not have been meant to validate such appeal which was incompetent.
(c) I also find that the filing of the said motion of 24/2/2012 in Appeal No: CA/OW/195/2011 by the Court Registry, was in error, which further led to the error on the face of the order of the Court made on the 24/4/2012.
(d) I therefore find that, Appeal No: CA/OW/123/2012 filed on the 03/5/2012 was filed in reaction to or consequent upon the order of 24/2/2012. This can be clearly seen on the preamble to the said Notice of Appeal.
Based on the above findings, I am satisfied that leave of this Court was sought and obtained, as required by law, before this Appeal No: CA/OW/123/2012 was filed; It is therefore competent and valid before us.
Having thus found, I proceed to determine same.
Now, the Appellant’s Notice of Appeal which is at pages 75-79 of the record of appeal, was dated and filed the 03/5/2012, by leave of this Court granted the 24/4/2012. It consists of four Grounds of Appeal, which I endeavour to reproduce below, but without their particulars. They are:
“1. ERROR IN LAW:
The Trial Court erred in law when it delivered judgment in Suit No: FHC/OW/CS/164/2011 in favour of the Plaintiff without hearing and determining the Appellant’s motion for joinder filed on the 1st day of June, 2011 which occasioned miscarriage of justice.
2. MISDIRECTION:
Trial Court misdirected itself in granting all the reliefs of the Plaintiff when the Plaintiff did not exhibit any certificate of Declaration (Form EC 8E) issued by the Defendant and there was no evidence that the Defendant has issued such certificate or returned the Plaintiff as the winner of the election.
3. ERROR IN LAW:
The Trial Court erred in law when it failed to issue Hearing Notice to the other parties and the party seeking to join (Appellant) before hearing and determining Suit No. FHC/OW/CS/164/2011 pursuant to the letter written by the Plaintiff.
ERROR IN LAW:
The Trial Court erred in law in entering judgment in favour of the Plaintiff when the Trial Court lacked the jurisdiction to entertain and determine the action.”
As required by the Rules of this Court, parties filed and exchanged briefs of arguments. The Appellant’s Brief of Arguments settled by A.I. Nwachukwu; Esq. was dated the 23/5/2012 and filed the same day. Therein, the Appellant nominated two issues for determination as follows:
1. Whether the Lower Court had jurisdiction to entertain the Suit.
2. Whether the Lower Court gave the Appellant a fair hearing.
The 1st Respondent filed a Brief of Arguments dated the 21/6/2012 and filed the 21/6/2012. At page 7 of the 1st Respondent’s Brief of Arguments, the issues formulated by the Appellant were reproduced and adopted by the 1st Respondent. The 2nd Respondent did not file any brief of argument.
It is necessary to point out at this juncture, that the 1st Respondent filed a Notice of Preliminary Objection to the hearing of this appeal. It is dated and filed the 21/06/2012. The Notice of Preliminary Objection states that-
“That this Honourable Court lacks the jurisdiction to entertain this appeal.”
The Grounds upon which the objection is based are that:
1. This appeal constitutes an abuse of Court or judicial process.
2. That there is already a pending appeal (APPEAL NO: CA/OW/195/2011) brought by the Appellant on which briefs of arguments have been exchanged.
3. That Appeal NO: CA/OW/95/2011 is in respect of the same subject matter, in issue and between same parties as this present appeal.
It would be necessary to determine the Preliminary objection before delving into the main appeal, if need be. The argument on the Preliminary Objection are at pages 4-6 of the 1st Respondent’s Brief of Arguments. Therein, Learned Counsel for the 1st Respondent contended that the Appellant had earlier on, filed an appeal in this Court, and which appeal is still pending as Appeal No.CA/OW/195/2011. That the issues, subject matter and the parties in this appeal and the Appeal NO: CA/OW/195/2011 are the same, and therefore this appeal constitutes an abuse of judicial or Court process. He relied on the cases of SARAKI v KOTOYE (1992) 9 NWLR (Pt. 264) p.156; AFRICAN REINSURANGE CORP. v JDP CONSTRUCTION LTD (2003) 2-3 S.C. p.47 at 63; PROF. OGUNSOLA v A.P.P & ORS (2004) 1 E.P.R. p.539 at 561 and R-BENAY (NIG.) LTD. v. CADBURY NIG. PLC (2012) M.R.S.C.J. (VOL.1) p.24 at 39 on the principles regarding what constitutes abuse of Court or judicial process. He then submitted that, it is in contestable that Appeal NO: CA/OW/195/2011, was instituted by the Appellant, who also instituted the present appeal. That following the principles enunciated in the cases cited by him above, this appeal constitutes an abuse of judicial process. We were then urged to strike same out.
The Appellant responded to the Preliminary Objection in the Appellant’s Reply Brief dated the 29/6/2012 and filed the 02/7/2012. Therein, the Appellant contended that, an appeal can only constitute an abuse of Court’s process where the Notice of Appeal is competent. That, where the Notice of appeal is incompetent, such as where leave is required, but such leave was not obtained, there cannot be said to be in existence a valid Appeal which can constitute an abuse of Court process. Furthermore, that Appeal NO: CA/OW/195/2011 is not before this Court so the issue of abuse of Court process is a mere ipse dixit of the 1st Respondent. We were then urged to dismiss the Preliminary Objection.

The law is now solidly settled that the term abuse of judicial or Court process conceptualizes a variety of such situations, where it can be said that the process of the Court has been abused. Generally, in legal terms, abuse of judicial process simply means that the process of the Court has not been properly used or that it has been used mala fide. It is applicable in proceedings which is wanting in bona fides, so that the process of the Court has been used vexatiously, frivolously and oppressively, leading to the irritation and annoyance of the adversary. The circumstances and situations where it can be said that the judicial process has been abused are infinite.
It all depends on the circumstances of each case. See E.O.M. PLC v U.B.A. PLC (2010) 1 NWLR (Pt. 1176) p.583, YAKUBU v A.S. CO. LTD. (2010) 2 NWLR (Pt. 1177) p.167; DINGYADI v I.N.E.C (2011) 10 NWLR (Pt.1255) p.347.

It follows therefore that, an abuse of judicial or Court process may occur in various ways. Some of such circumstances are:
(a) instituting multiple cautions on the same subject matter against the same party or parties on the same issue; or
(b) instituting multiple suits or actions between the same parties on the same matter; or
(c) instituting different actions between the same parties simultaneously in different Courts even though on different ground; or
(d) using two similar processes in respect of the exercise of the same right such as a cross-appeal and a Respondent’s Notice. See TOMTEC (ING.) LTD. v F.H.A. (2009) 18 N.W.L.R (Pt.1173) p.358; CHINDO v ISAH (2011) 4 NWLR (Pt.1236) p.27 and A.C.B. PLC v NWAIGWE (2011) 7 NWLR (Pt.1246) p.386. As can be seen from the above cited authorities the classes or instances of abuse of judicial or Court process are not closed. They are infinite.
In the instant case, the complaint of the 1st Respondent is that, the Appellant filed this appeal while Appeal No: CA/OW/195/2011, which he contends is premised on the same subject matter, same issues and same parties, is an abuse of judicial process. I think the submission of Learned Counsel for the Appellant that the Notice of Appeal in the earlier appeal is incompetent has answered the 1st Respondent. Indeed, I have found earlier in this appeal that the Appeal No: CA/OW/195/2011 was founded upon an invalid Notice of Appeal. It is as if that Notice of Appeal did not exist. That being so, it cannot be rightly and validly argued that the Appellant had filed two appeals which are pending simultaneously before this Court. Being an invalid process, the Notice of Appeal No: CA/OW/95/2011 cannot operate as to affect the instant appeal with the virus of abuse of Court process. The preliminary Objection therefore has no merit at all. It is accordingly dismissed.
After a careful consideration of the issues raised or nominated for determination, I am of the opinion that we should consider the second (2nd) issue so nominated, first. I therefore proceed to consider the 2nd issue formulated by the Appellant for determination, which is: whether the lower Court gave the Appellant a fair hearing. The Appellant argued this issue at pages 9-13 of the Appellant’s Brief of Arguments. Referring to Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria, Learned Appellant’s Counsel contended that, the right to fair hearing is not only a constitutional issue but also a principle of common law as well as Customary Law. He also cited the cases of BILL CONSTRUCTION CO. LTD. v IMAM & SONS LTD (2007) C.H.R. p.28 at 35 and OKOROIKE v IGBOKWE (2001) 14 NWLR (Pt.688) p.498 at 505 para. D, to submit that the constitutional provision on fair hearing entrenches the twin pillars of nemo judex in causa sua and audi alteram partem.
Learned Appellant’s Counsel referring to the cases of PETER v. OKOYE (2002) F.W.L.R (Pt.110) p.1864 at 1882 paras. A-C; ESHENAKE v. GBINIJE (2005) ALL FWLR (Pt.289) p.1270 at 1292 paras A-E; to further submit that a breach of the right to fair hearing can take place in a plethora of ways, such as where a Court fails to pronounce on the issue or issues placed before it. That it can also occur where a Court raises an issue suo motu and goes ahead to pronounce on the issue without affording the parties or any party an opportunity of being heard on it. The cases of ENWERE v C.O.P. (1993) 6 NWLR (Pt.299) p.333 at 341 para A; AFRICAN CONTINENTAL SEAWAYS LTD v. NIGERIAN DREDGING, ROAD & GENERAL WORKS LTD (1977) 1 ALL N.L.R. p.197, NIGERIAN PORTS AUTHORITY SUPERANNUATION FUND v. FASEH SERVICES LTD (2002) F.W.L.R (Pt. 97) p.719 at 741 paras C-E and EJEZIE v. ANNUWU (2008) ALL F.A.W.L.R (Pt.422) p.1005 at 1049 paras. D-G; were also cited in support. He again cited the cases of DINGYADI v. INEG (No.1) (2010) 18 NWLR (Pt.1224) p.1 at 52-53 paras B-D; F.A.A.N. v. W.E.S. (NIG.) LTD. (2011) 8 NWLR (Pt.1249) p.219 at 237 paras D-E; DANDUME LOCAL GOV’T COUNCIL v. YARO (2011) 11 NWLR (Pt.1257) p.159 at 190 paras. A-C & 175 paras. E-F AND MOBIL PRODUGING (NIG.) UNLIMITED v. MONOKPO (2013) 18 NWLR (Pt.852) p.346 at 412 – 419 Paras. D-F per Uwaifo; JSC, to submit that, it is essential and mandatory for a Court before which a motion or application is pending to hear and determine it before proceeding to deliver judgment in the case.
That, it is immaterial that the motion was not brought to the attention of the Court by the Court Officials timeously, because such official being an agent of the Court, their knowledge must be imputed to the Court. The case of STEYR (NIG.) LTD. v DE LUKE MUONANU ENT. (NIG) LTD (1999) 12 NWLR (PT. 631) p. 458 at 467 paras. E-F was cited in support. It is further submitted by Learned Counsel for the Appellant that, it is therefore a denial of fair hearing for a Court to ignore a pending motion or refuse to hear it and proceed to deliver judgment in the case. That in the instant case, the Appellant was a candidate in the election, the subject matter of this Suit, and on becoming aware of the pendency of the suit, filed a Motion on Notice, seeking to join the fray as a Defendant and which motion was dated and filed the 01/6/2011. That the motion was neither heard nor fixed for hearing when the Court below proceeded to hear the case and deliver judgment the same day; which is the 06/6/2011 pursuant to a letter from the 1st Respondent. It was therefore submitted that, the failure to serve a party to a case or an Applicant in a motion for joinder with a hearing notice is a denial of fair hearing. The case of INTAGRO LTD v. BASSEY (2008) ALL F.W.L.R. (PT.419) p.450 at 468 para. D-G per NGWUTA; JCA (as he then was) was cited in support. It was accordingly submitted by Learned Appellant’s Counsel that, the Appellant was denied a fair hearing. That the effect of such denial of fair hearing is that, the proceedings is a nullity and liable to be set aside. The cases of INTAGRO LTD v. BASSEY (supra) at 470 paras G-H; ODUTOLA v KAYODE (1994) NWLR (pt 324) p.1 and DINGYADI v INEC (NO.1) (supra) at p.90 paras D-F, were then cited to urge us to allow the appeal.
Learned Counsel for the 1st Respondent contended that, the Appellant’s complaint here is that, he was not given a fair hearing, simply because he filed a motion for joinder in the suit at the lower Court but such application was not heard. That the lower Court cannot be said to have refused or ignore to hear a motion that it was not aware of and not put in the Court’s file. That the Respondents were not also aware of the said motion, as same was not served on them. Learned Counsel further contended that, it is not the duty of a judge to go searching in the registry for processes filed in a suit, but only acts based on processes that are in the Court’s file. That even where a process has been filed but is not in the Court’s file, the Court cannot act on same, as an application is deemed to be before a judge when such application is in the Courts file and not when it is filed. He then submitted that the Appellant was therefore not entitled to be heard on the said motion which was not before the judge, and that the Appellant not being a party to the Suit at the Court below, cannot complain of denial of fair hearing. The case of SOSANYA v ONADEKO (2005) ALL FWLR (Pt.255) p.1000 at 1009 was cited in support.
It is also contended by Learned Counsel for the 1st Respondent that, the lower Court delivered its judgment based on what was before it, and that what was before it during the proceedings is the 1st Respondent’s processes which were unchallenged in anyway by the 2nd Respondent. The case of OMOJUYIGBE v NIPOST (2010) ALL FWLR (Pt.543) p.1907 was cited in support. That it is clear from the record at page 40 thereof, that the Appellant’s motion was not in the Court’s file before and during the proceedings leading to the judgment, and therefore the Court below, acted on the unchallenged evidence of the 1st Respondent and not the purported motion of the Appellant which was not in the Court’s file. That having discovered this fact, the Appellant did nothing other than to rush to this Court to complain of want of fair hearing. That, the Appellant should have exhausted other remedies available to him at the lower Court before complaining of denial of fair hearing. He then submitted that, if the denial of fair hearing was found to be true, the lower Court had the inherent power, and under Order 8 Rule 9 of the Federal High Court (Civil Procedure) Rules, 2009 to set aside the judgment. The case of AUTO IMPORT EXPORT v. ADEBAYO (2002) 12 N.S.C.Q.R. p.357 at 376 was also cited in support.
He submitted therefore that, the Appellant’s complaint of denial of fair hearing is premature, having not first applied to the lower court to have the judgment set aside.
The 1st Respondent’s Learned Counsel further relied on the case of INAKOJU v ADELEKE (2007) I.K.L.R. p.291 at 406-407 per Tobi, JSC, to submit that, for all intents and purposes, the said motion for joinder filed by the Appellant at the lower Court which was neither served on the 1st Respondent nor was in the Court’s file, was a process meant to ambush the Court and the 1st Respondent.
Learned 1st Respondent’s Counsel also cited the cases of MARCHANT BANK OF (NIG.) v NWOBODO (2005) 23 N.S.C.Q.R. p.60 at 68-69 per Pats-Acholonu; JSC (of blessed memory), to contend that, ground one of the Appellant’s appeal is an attack on an issue which was not decided by the trial Court. He then submitted that, the lower Court not having said anything about a pending motion, the judgment of the Court has no link with the motion for joinder. We were then urged to strike out ground one of the Notice of Appeal as being incompetent. On the whole, we were urged to hold that the Appellant was not denied fair hearing and to dismiss the appeal.
It would be seen from the submissions of Counsel on this issue that, the 1st Respondent raised certain fringe or peripheral issues which need be considered before proceeding to determine on the substantive issue. The first issue raised by the 1st Respondent is that, the Appellant ought to have first prayed the Court to have the judgment set aside before embarking on this appeal. It should be noted that this appeal is grounded on fair hearing which is on issue of jurisdiction. Furthermore, aside the issue of fair hearing, the Appellant has challenged the jurisdiction of the Court below to have hard and deliver judgment on the subject matter of the claim before it. That issue is covered by grounds 2 and 4 on the Notice of Appeal, and from which issue two (2) has been formulated for determination. It is apparent therefore, that the entire grounds of appeal and the issues formulated there from challenge the jurisdiction of the Court below to have heard and determine the Suit before it.
It is now settled law that, an issue of jurisdiction is fundamental to adjudication, and can be raised at any time or stage of the proceedings, even for the first time on appeal in the Supreme Court. It can also be raised by the Court suo motu. Order 8 rule 9 of the Federal High Court (Civil Procedure) Rules, 2009 referred to by the 1st Respondent does not prescribe that a party must first apply to the Court below to have the judgment set aside for want of jurisdiction, before proceeding on appeal.
Consequently, the case of ORACKUL RESOURCES LTD v N.C.C. (2007) ALL C.W.L.R (Pt.390) p. 1482 at 1507 cited and relied on by the 1st Respondent has no relevance to the facts and circumstances of this case. The issues in this appeal, being issues of jurisdiction, were competently raised before this Court, even if they were raised for the first time. See OPOBIYI v MUNIRU (2011) 18 NWLR (Pt. 1278) p.387; L.S.W.C. v. SAKAMORI CONST. (NIG.) LTD (2011) 12 NWLR (PT.1262) p.569; MANI v. NASIR (2011) 13 NWLR (Pt.1263) p.23; A.G; RIVERS STATE v AKWA IBOM STATE (2011) 8 NWLR (Pt. 1248) p.31 and SLB CONSORTIUM LTD v N.N.P.C (2011) 9 NWLR (Pt. 1252) P.317. The Appellant therefore need not have applied to the Court below, to set aside its judgment before approaching this Court, as no such procedure has been prescribed or was mandatorily required of him.
The 1st Respondent also contends that, the Appellant’s motion for joinder filed at the lower Court, was meant to ambush him and the Court and thus delaying the justice of the Court; because such motion was not served on the 1st Respondent nor placed in the Court’s file. I think by raising this issue, the 1st Respondent has been grossly unfair to the Appellant. A perusal of the record of appeal would show that, the 1st Respondent filed his Originating Summons on the 24/5/2011, and by the said originating motion, the 2nd Respondent, who was then the only Defendant, had thirty (30) days within which to enter appearance. However, in his zeal to rush the Court, filed an ex-parte application along with the originating summons, even when the 2nd Respondent had not been served the originating process, so that the matter be given an accelerated hearing. There is no evidence on the record that the said ex-parte motion filed 25/5/12 was ever heard, but there is evidence on record to show that hearing on the originating summons was adjourned to the 02/6/2011. The Appellant, who got mind of the matter, filed his motion for joinder on the 01/6/2011 and duly paid the filing fees. In the circumstances, is it fair to condemn him for plotting to delay justice? If anything, I am of the view that the rendition given in the case of INAKOJU v. ADELEKE (supra) per Tobi, JSC as cited by Learned Counsel for the 1st Respondent, aptly describes the attitude of the 1st Respondent in this case, who plotted to clandestinely to get judgment from the Court so as to satisfy his selfish political ambition to the exclusion of those who contested the election with him, and without any input from the body that, conducted the election he sought to reap the benefit of. Surely, the Appellant acted appropriately by filing the motion to be join in the Suit. He cannot therefore be blamed or condemned for the failure of the Court staff to serve same, and which motion was timeously filed. The contention of the 1st Respondent here should be consigned to the waste basket or trash bin. It is accordingly discountenanced.
The 1st Respondent has also contended that, ground one of the Notice of Appeal does not arise from the judgment of the trial Court. I had earlier held that Grounds one (1) and four (4) on the Notice of appeal filed on the 03/5/2012 raise the issue of jurisdiction, which can be raised at any stage of the proceeding, even for the first time on appeal. I think it is the failure of the Court below that has brought out the issue of want of fair hearing as raised in Ground one (1) of the Notice of Appeal. The contention of the 1st Respondent here is again without merit. It is accordingly discountenanced.
I now proceed on the substantive issue or complaint here; which is on the failure of the Court below to give the Appellant fair hearing in the matter before judgment was pronounced. The right to fair hearing which is a universal concept has been enshrined and entrenched in Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria. This universal principle which has been entrenched in our Constitution is a constitutional guarantee of the twin pillars of natural justice; to wit: nemo judex in causa sua and audi alteram partem. They simply mean that no person shall be a judge in his own cause and that both sides and parties to a dispute should be given equal opportunity to be heard. In other words, that Courts are enjoined to give equal opportunity to parties to a dispute to present their case. Some of the recognized attributes of fair hearing are that:
(a) before the Court proceeds to pronounce or determine on those issues;
(b) the Court or tribunal must give equal opportunity, treatment and consideration to both Parties;
(c) the proceedings should be held in public and all concerned should have access to and be informed of the place of such hearing;
(d) the judge or judex must be seen to be neutral in the sense that he should not be seen or reasonably perceived to be biased or favour one side to the dispute;
(e) having regards to all the circumstances of the proceedings, justice must not only be done, but must be so manifestly seen to have been done.
See S & D CONST. CO. LTD v AYOKU (2011) 13 NWLR (Pt.1265) p.487; OVUNWO v WOKO (2011) 17 NWLR (Pt.1277) p.522; ODIGWE v J.S.C.; DELTA STATE (2011) 10 NWLR (Pt.1255) p.254; AWONIYI v REG. TRUSTEES OF P.O.A (2000) 4 S.C. p.103 and BABA v N.C.A.T.C. (1991) 5 NWLR (Pt.192) p.388.
The Appellant’s complaint in this appeal is that, he had filed a Motion on Notice on the 01/6/2011 to be join in the Suit as a Defendant, but that on the 06/6/2011, the Court below without considering his motion, entered judgment in the matter. One of the twin pillars of the principles of fair hearing is that, the Court must hear both parties to the Suit. The essence of the audi alteram partem principle is that, a verdict should not be entered against a man in a matter relating to his rights or obligations, without his being heard. A denial of the right to be heard or the opportunity to be heard is a breach of the rules of natural justice as enshrined in our Constitution.

To determine whether the principles of fair hearing has been breached or denied a party in a particular case, an appellate court will consider the nature and circumstances surrounding the whole case, as manifested in the record of appeal. What the appellate court should concern itself with, is not the correctness of the decision, but whether the proper procedure was followed in a particular case. See F.R.N. v AKUBUEZE (2010) 17 NWLR (pt.1233) p.525. The burden is on the Appellant who alleges the breach of his right to fair hearing in a case, to prove the breach, which he must do in the light of the facts of the case. See MAIKYO v ITODO (2007) 7 NWLR (Pt.1034) p.443; AKULEGA v BENUE STATE C.S.C. (2001) 53 W.R.N. p.83; DANTATA & SAWOE CONST. CO. LTD v IBRAHIM (2003) 31 WRN p.80; ARIORI v ELEMO (1983) ALL N.L.R. p.1; CASSIDY v FEDERAL REPUBLIC OF NIGERIA (2002) 47 WRN. P.102 and LT. COL. AKINWALE v. NIGERIAN ARMY (2001) 16 NWLR (Pt.738) p.109.

The law is also settled that, a Court must consider and pronounce on all applications or motions duly filed and pending before it. That being so, failure by a Court to hear an application properly filed before it amounts to a breach of fair hearing. In other words, where a Court refuses, fails or neglects to hear an application or motion properly placed before it, would amount to a breach of the fundamental right to fair hearing as enshrined in Section 36(1) of the 1999 Constitution. See NWOKORO v ONUMA (1990) NWLR (Pt.136) P.22; COOKEY v. FOMIRO (2005) 22 N.S.C.Q.R. p.411 at 428 NEWS WATCH COMMUNICATIONS LTD v ATTA (2006) 6 N.S.C.Q.R. p.438 at 458-459; NALSA & TEAM, ASSOCIATES v N.N.P.C. (1991) 8 NWLR (Pt.212) p.652 at 676 and ALFA v ATANDA (1993) 5 NWLR (Pt.296) p.729.
A careful perusal of the record of appeal in this case, would reveal the following facts;
(a) That upon filing the originating summons on the 24/5/2011, the 1st Respondent accompanied same with an ex-parte motion also filed on 24/5/2011, praying that time for the hearing of the matter be abridged. That was even before the 2nd Respondent in this appeal, who was the only respondent in the originating summons could be served. The record does not reveal to me that the said motion was heard.
(b) It would appear however that, the matter was adjourned to the 02/6/2011 for hearing, but the judge could not sit.
(c) On the 06/6/2011, the 1st Respondent’s Counsel, using the letter head of the 1st Respondent’s Law Chambers, wrote the Court below urging the Court to hear and determine the matter that same day, so as to enable the 1st Respondent participate in the inauguration of the Imo State House of Assembly billed for the following day; 07/6/2011 as he had been short-listed for the position of Deputy Speaker.
(d) The above cited letter was never served or brought to the attention of the Defendant in the matter. It was just a communication between the 1st Respondent and the Court.
(e) Before the letter of 6/6/2011, the Appellant in this case, had filed his motion for joinder on the 01/6/2011, about 6 days before the 1st Respondents letter of 06/6/2012. The Learned trial judge however did not consider the application or motion of the Appellant filed earlier than the 1st Respondent’s letter, on the pre that the Registrar of the Court only drew his attention to the Appellant’s motion only after he had heard the 1st Respondent and delivered judgment in the matter. I wonder why the Registrar could find it convenient to draw His Lordship’s attention to the 1st Respondent’s extra-judicial letter, but failed to do same for the Appellant’s Motion which was duly filed and filing fee paid for.
(f) It is clear on the record that the learned trial Judge conveniently honoured the 1st Respondent’s letter dated 06/6/2011, and heard the 1st Respondent at 2.00 p.m. on his substantive suit. Thereafter, he proceeded to hurriedly write a judgment that same day, much after 2.00 p.m, granting all the relieves sought by the 1st Respondent. The Learned trial judge then made a note, which he said was made in chambers at about 3.15 P.M, after he had risen, that the process clerk brought the Appellant’s motion to him, after he had delivered judgment with apology. Though the Learned trial judge further made a note that he had no inkling that such a motion existed, either before or at the proceedings of 06/6/2011, it does not sound convincing to me.
From the facts as enumerated above, it is obvious to me that the learned trial judge refused or to put it mildly failed to consider the Appellant’s motion before he proceeded to hear and determine the Suit. He cannot hide under the canopy of the deliberate failure of the lower Court’s registry to justify his action. How could he hear the 1st Respondent on a mere letter without evidence that the other side was aware of the letter, to proceed to hear and determine a contentious matter such as this, which had to do with election into a public office. I believe the learned trial judge should have exercised greater caution in the matter. If he had done so, he would have avoided falling for the gimmicks played on him by the 1st Respondent. He did not, and the 1st Respondent succeeded in using the judicial process, even though I day say surreptitiously, to get into the Imo State House of Assembly.
I agree with Learned Counsel for the Appellant that, the learned trial Court cannot use the default of the Court official as a shield to escape from any blame. To that end, I endeavour to reproduce and rely on the dictum of Akpabio; JCA in STEYR (NIG.) LTD v DE LUKE MUONANU ENT. (NIG LTD (supra) where His Lordship stated that-
“In the instant case, therefore, even if the learned trial Chief Judge was not aware of the pending application for stay of execution, which had not been served, his Registrar was clearly aware of it, and his knowledge must be imputed to the Learned trial Chief Judge, as the Registrar was the servant or agent of the Learned Chief Judge in these matters.”
Indeed, it has to be so, otherwise a leeway would be opened in the administration of justice, where as in the instant case, a trial judge would conveniently ignore a process which had been properly filed, leading to injustice to the party, and then claim ignorance of such process. Here, I do not impute fraud or fraudulent conduct on the part of judge or any other officer of the Court, but merely stating that such happenings are not unexpected, as seen in the instant case. The end result of what I have stated above is that, the Appellant’s motion seeking to join in the suit at the lower Court was not heard. There was therefore a failure of fair hearing. In other words, the Appellant was not heard on his motion for joinder filed on the 01/6/2011, which therefore occasioned a breach of his fundamental right to be heard guaranteed him by Section 36(1) of the 1999 Constitution.
The law is that where there is a breach of the right to fair hearing in any proceeding of a Court, that proceeding and or including the judgment consequent upon that proceeding, is a nullity, and an appellate Court which so finds will have same set aside. See SALU v TAIWO (1994) 6 NWLR (pt.348) p.23 at 44 DINGYADI v I.N.E.C. (NO.2) (2010) 18 NWLR (pt.1224) p.154; TUNBI v OPAWOLE (2000) 2 NWLR (Pt.644) p.275 at 288; OKAFOR v A.G. ANAMBRA STATE (1991) 6 (1994) 7 NWLR (pt.200) p.659; A.G. RIVERS STATE v UDE (2006) 7 NWLR (Pt. 1008) p.436; UZUDA v EBIGAH (2009) 15 NWLR (Pt.1163) p.1; KOTOYE v SARAKI (1994) 7 NWLR (Pt.357) p.414 at 456 and SALEH v MONGUNO (2003) 1 NWLR (Pt.801) p.221 at 246.
Having found as above, it is obvious therefore that the judgment of the Federal High Court in Suit No. FHC/OW/CS/164/2011 delivered on the 6/6/2011 is a nullity, having been delivered in breach of the Appellants right to fair hearing. Since the judgment is a nullity, the only remedy is for same to be set aside. In that respect, it would no more be necessary to delve into the other matters or issues raised in this appeal.
On the whole therefore, it is my view which I do hold that, this appeal has merit. It is accordingly allowed. Consequently, I hereby order that the judgment of the Federal High Court, Owerri Judicial Division, in Suit No. FHC/OW/CS/164/2011, BETWEEN; BARR. GREG OKEMILI AND INDEPENDENT NATIONAL ELECTORAL COMMISSION (I.N.E.C) delivered on the 6th day of June, 2011 is hereby set aside. The matter is accordingly remitted to the Federal High Court, Owerri Judicial Division for hearing de novo.
I award fifty thousand naira (N50, 000.00) as cost against the 1st Respondent in favour of the Appellant.

JOHN INYANG OKORO, J.C.A.: I read in draft the judgment of my learned brother HARUNA SIMON TSAMMANI, JCA, just delivered and I agree entirely with him that this appeal is meritorious. My learned brother has ably resolved all the salient issues submitted for the determination of this appeal and I hereby adopt both his reasoning and conclusion as mine. I also allow this appeal and abide by all the consequential orders made in the lead judgment, that relating to costs, inclusive.

PHILOMENA MBUA EKPE, J.C.A.: I have read in draft the lead judgment of my learned brother HARUNA SIMON TSAMMANI, JCA, and I agree entirely with the reasoning and conclusions therein. This appeal is meritorious and is hereby allowed. Consequently the judgment of the Federal High Court, Owerri in Suit No. PHC/OW/CS/164/2011 delivered on the 6th day of June 2011 is hereby set aside. The matter is remitted to the Federal High Court Owerri Judicial Division for hearing de novo. I abide by His Lordship’s order as to costs in favour of the Appellant.

Appearances

K.C.O. Njemanze; SAN with A.I. Nwachukwu; Esq. and K.I. Uduma; Esq.For Appellant

AND

J.A. David; Esq for the 1st Respondent
B.I. Amadi (Mrs.) for the 2nd RespondentFor Respondent