C.O.P CROSS RIVER STATE & ORS v. EFFIONG & ORS
(2022)LCN/16092(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Wednesday, March 30, 2022
CA/C/101/2016
Before Our Lordships:
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Balkisu Bello Aliyu Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
1. COMMISSIONER OF POLICE, CROSS RIVER STATE 2. ASST. COMMISSIONER OF POLICE, STATE CID 3. INSPR. ELEMI 4. EFFIOM EDEM EFFIOM 5. MRS. MFON EFFIOM EDEM 6. MRS. MERCY BASSEY JAMES 7. MR. BASSEY JAMES AKPAN APPELANT(S)
And
1. MRS. IDARA GODWIN EFFIONG 2. MR. GODWIN EFFIONG OFUM 3. MRS. ROSE HANSON UMUH RESPONDENT(S)
RATIO:
ENTITLEMENT TO FAIR HEARING IN THE DETERMINATION OF CIVIL RIGHTS AND OBLIGATION
Service of hearing notice on a party who is entitled to be served is fundamental to the jurisdiction of the Court in any proceeding before it. This is because by the provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, every person in Nigeria is entitled to fair hearing in the determination of his civil rights and obligation. This means that a Court of law cannot and should not give a judgment against a person unless he is given adequate opportunity to be present in the proceedings determining his rights or obligation and be heard. See TECHNIP VS. A.I.C. LTD (2016) 2 NWLR (PT. 1497) 421 (CA), NUT TARABA STATE & ORS. VS. HABU & ORS. (2018) LPELR-44057 (SC) and DARMA VS. ECOBANK (2017) LPELR-41663 (SC).
A judex must therefore be absolutely certain and must also state in the Court’s record clearly that a party absent in the proceedings was notified of that date before proceeding. Otherwise, any steps taken where there is no service or proper service of the hearing notice would be a complete nullity and liable to be set aside on appeal. This is crucial to adjudication and it can never be over emphasized. BALKISU BELLO ALIYU, J.C.A.
BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Cross River State, sitting at Calabar, (trial Court), delivered on the 17th November 2015 in respect of an application for enforcement of fundamental human rights NO: HC/27/2014 filed by the Respondents being the Applicants against the Appellants who were the Respondents. By that motion, the Respondents prayed the trial Court for the following orders:
1. A DECLARATION that the arrest and detention of the 3rd Applicant by the 1st -3rd Respondents on the 28th day of November 2013 is illegal and unconstitutional as it offends the Applicants’ right to personal liberty as guaranteed by Section 35 of the 1999 Constitution, as amended and the African Charter on Human And Peoples Right (Ratification and Enforcement) Act, Cap. A9 LFN 2004.
2. A DECLARATION that the continued harassment, intimidation, threats to further arrest and detain the 3rd Applicant by the 1st – 3rd Respondents is illegal and unconstitutional as it violates Applicants’ right to personal liberty guaranteed by the 1999 Constitution and the African Charter on Human And Peoples Rights.
3. A DECLARATION that the arrest and detention of the 1st – 2nd Applicants by the 1st – 3rd Respondents on the 28th day of November 2013 is illegal and unconstitutional as it offends the Applicants’ right to personal liberty as guaranteed by the 1999 Constitution and the African Charter on Human And Peoples Rights.
4. A DECLARATION that the continued harassment, summons, intimidation and threats of arrest and detain the Applicants by Respondents is illegal and unconstitutional as it interferes on the said Applicants’ right to liberty as guaranteed by the 1999 Constitution and the African Charter on Human And Peoples Rights.
5. A DECLARATION that the physical attack, assault and brutalization of 2nd Applicant by the 4th – 5th Respondents on 8th November 2013 which caused her harm, is illegal and unconstitutional as it infringes on the said Applicants’ right to life and dignity of human person as guaranteed by Chapter 4 of the 1999 Constitution, as amended and the African Charter on Human and Peoples Rights.
6. A DECLARATION that the invasion of Applicants’ homes by the Respondents in the brazen and violent manner complained herein was unjustifiable and constitutes a violation of the Applicants’ right to privacy guaranteed by Chapter 4 of the 1999 Constitution, as amended, and the African Charter on Human and Peoples Rights.
7. AN ORDER of perpetual injunction restraining the Respondents, whether by themselves, servants, agents, employees or privies from further arresting and detaining the Applicants or harassing, threatening or intimidating them.
8. N200,000,000.00 (Two Hundred Million Naira) only, against the Respondents, jointly or severally, as damages or compensation to the Applicants for torture, emotional pains and psychological trauma suffered by the Applicants as a result of the violations complained herein.
9. A PUBLIC APOLOGY by the Respondents for the illegal arrest and detention of the Applicants.
The facts stated in the Respondents’ affidavit in support of their motion disclosed that the cause of this action arose from a domestic dispute between the Appellants and the 4th to 7th Respondents who all resided in the same compound and were neighbours to each other.
On the 7th November 2013, the 1st Respondent (1st Applicant at the trial Court) requested okro vegetable from the 3rd Respondent (her land lady) to cook soup for her family. Unknown to 1st Respondent, the 6th Appellant had earlier also made the same request and collected okro vegetable from the 3rd Respondent. The 6th Appellant misconstrued the request of the 1st Respondent as an attempt to mock her (6th Appellant) for crossing over to the 3rd Respondent to ask for okro vegetable, and the 6th Appellant launched verbal abuse on the 1st Respondent alleging that the 1st Respondent mimicked her request for okro vegetable in order to mock her. This incident later resulted into a violent fight between the Appellants and the Respondents. The 1st Respondent alleged that the 4th Appellant assaulted her and pushed her down ten flights of stairs that adorn her veranda and she hit the ground sustaining injuries on her body. She also said she was two months pregnant at the time and the shock of her fall caused an incomplete miscarriage of the pregnancy.
The 1st Respondent made a report of the incident to the Efut Police divisions, where the officers commenced investigation on the complaint and they sent her for medical examination regarding her complaint of miscarriage of pregnancy. There was an attempt to amicably settle the matter by the police who asked the 4th to 7th Appellants to pay the 1st Respondent’s medical bills. When the amicable settlement moves failed, the DPO of the Efut Police Station decided to charge the 4th to 7th Appellants to Court and requested them to report to Court on the 28th November 2013.
On that 28th November 2013 at about 7:30a.m as the Respondents were preparing to report to Court as directed, fierce looking and heavily armed police officers in both mufti and police uniforms stormed their house and arrested them along with the 3rd Respondent who had nothing to do with the quarrel/fight between the 1st Respondent and the 4th to 7th Appellants. They were all arrested for provoking the 4th to 7th Respondents and taken to the C.I.D. Diamond Hill Calabar, where they were detained in a filthy, dingy cell with noxious and offensive smells from 9:00 am on 28th November 2013, till 7:30a.m. of Saturday 29th November 2013 when they were bailed out upon payment of N10,000 for the 1st Respondent’s bail and N5000 each for the 2nd and 3rd Respondents respectively.
The Respondents were directed by the police officers of the C.I.D. to report back on the 10th December 2013, which they did and were detained again on that same date from 9:00 am till 7:40 p.m. and threatened to be charged to Court from where they would be sent to the Federal Prison, unless they begged the 4th -7th Appellants and promised to abide by any terms and conditions the Appellants handed to them. Their appeal to the 3rd Appellant to call for the case file of investigation carried by the police officers of Efut police station was ignored. The Respondents said they were summoned to the CID office repeatedly and threatened to be charged to Court and the constant harassment and intimidation continued, necessitating them to file this application at the trial Court to enforce their fundamental right to personal liberty.
The 1st to 3rd Appellants were out of time to file their counter affidavit to the Respondents’ motion; and they therefore filed an application by a motion on notice on the 4th June 2014 for extension of time within which they could file their counter affidavit and deeming the already filed counter affidavit and their counsel written address as properly filed and served. See pages 114 to 154 of the record of appeal.
On their part, the 4th to 7th Appellants (as the 4th to 7th Respondents at the trial Court) filed what can be termed as a ‘counter motion’ in response to the application of the Respondents. That motion was filed on the 14th February 2014 by which they too applied to the trial Court for the enforcement of their fundamental rights against the Respondents. The motion is copied in pages 72 to 80 of the record of appeal. In addition to their ‘counter motion’, the 4th to 7th Appellants filed a counter affidavit accompanied with a written address both dated the 24th November 2014, in opposition to the Respondents’ original motion.
The record shows that the Application was called for hearing on the 24th November 2014 and both Appellants and their counsel were absent on that date. The Respondents’ counsel informed the trial Court that 1st to 3rd Respondents filed a motion on notice for extension of time to file their counter affidavit, but that they have abandoned that motion. He applied that it be struck out. He also informed the trial Court that the 4th to 7th Respondents have filed a motion on 14/2/2014 for the enforcement of their fundamental rights, but that motion was also abandoned. He applied to the trial Court to strike it out as well. The Respondents’ counsel’s application was granted and the two motions were struck out.
With regards to the 4th to 7th Appellants’ counter affidavit and address in response to the main application, the Respondents’ counsel applied that these processes be deemed adopted pursuant to Order XII Rule 3 of the Fundamental Rights Enforcement Procedure Rules 2009 and it was granted. Thereafter, the learned trial judge adjourned the Respondent’s application from 24th November 2014 to 9th December 2014 for judgment.
The Court subsequently delivered the judgment a year after the hearing of the application on the 24th November 2015 and granted all the reliefs sought by the Respondents. But instead of N200 million compensation the Respondents sought in their relief (h), the trial Court awarded N500,000 compensation and N10,000 cost against the Appellants in favour of the Respondents.
The Appellants were unhappy with the judgment of the trial Court, hence this appeal vide their notice of appeal filed on the 27th November 2015 in which they relied on four (4) grounds of appeal to pray this Court to allow the appeal and set aside the judgment of the trial Court. In its place, the Appellants prayed that their ‘counter motion’ filed on 14/2/2014 for the enforcement of their fundamental rights be granted.
The Appellants’ brief of argument settled by EMMANUEL ABANG ESQ. was filed on the 1st June 2016 and in pages 3 to 4 thereof, the learned counsel proposed eight (8) issues from the four (4) grounds of appeal for the determination of this appeal, reproduced below:
1. Whether there could be fair hearing when the Appellants were not granted hearing?
2. Whether the 2nd Judgment delivered on the 17th day of November 2015, 1 year after the 1st Judgment of 24th November 2014 after 10 months judiciary industrial action without notice to Appellants is not a judgment given without jurisdiction?
3. Whether an arrest properly made on reasonable suspicion of having committed an offence can constitute a breach of fundamental rights?
4. Whether the Respondents’ application has not raised the issue of estoppel to shut up complaints against crime?
5. Whether from the Respondents/Applicants claim in the fundamental rights application filed on 24/1/2014 the motion on notice disclosed any main relief as rights guaranteed in the Nigerian Constitution and as entrenched in Chapter IV of the 1999 Constitution?
6. Whether the jurisdiction of a Court to hear a matter is determined by the plaintiffs’ claim?
7. Whether the Appellants’ counter motion filed on 14/2/2014 is not an independent and separate action for which the Appellants/Respondents/Applicants are entitled to prove and the Respondents/Applicants with a corresponding duty to defend?
8. Whether in view of issues 1-7 above, the weight of evidence is not in favour of the Appellants as to tilt the judgment in their favour?
In response to the appeal, the Respondents filed a notice of preliminary objection on the 23rd November 2021, challenging the competence of this appeal on the grounds that:
1. The notice of appeal as well as the Appellants’ brief of argument in support of the instant appeal are incompetent, having regard to the following grounds:
a. Non-service of the notice of appeal on the Respondents.
b. Except with leave of Court grounds 1 & 2 of the Notice and grounds of appeal are incompetent.
c. Issues canvassed in the Appellants’ brief of argument do not arise from and have no connection with the grounds of appeal.
d. Any ground of appeal from which no issue has been distilled is deemed abandoned and no argument on such ground can be countenanced.
e. In the absence of competent grounds of appeal and issues upon which a notice of appeal in this appeal can be predicated, this appeal is incompetent, and the Honourable Court is robbed of jurisdiction to hear and determine same.
Argument in support of the preliminary objection in the Respondents’ Joint Brief of Argument settled by A. E. Okpa Esq. filed on the 23rd November 2021. With regards to the merits of the appeal, the learned counsel distilled four issues from the four grounds of appeal thus:
1. Whether in the light of the failure of the Appellants to distill any of their issues from any of the grounds of appeal contained in their notice of appeal, there is any competent ground of appeal upon which the Notice of Appeal can be stand(sic).
2. Whether the lower Court did not give a hearing to the 4th to 7th Appellants’ Application filed on 14/2/2014?
3. Whether the Fundamental Rights (Enforcement Procedure) Rules 2009 provide for a counter claim, and whether it is correct that the lower Court refused to deliver judgment on the 4th – 7th Appellants’ purported counter-claim?
4. Whether considering the failure of the 4th -7th Appellants’ counter affidavit filed on 14/2/14 to specifically and clearly deny the Averments in paragraphs of the Respondents’ affidavit, the weight of evidence is in favour of the Appellants’ case?
The Appeal was called for hearing on the 20th January 2022, and both the Appellants and their counsel were absent, but Appellants’ counsel was properly served hearing notice. The Respondents’ counsel applied that the Appellants’ brief filed on 1/6/2016 be deemed as adopted and the appeal deemed argued by the Appellants pursuant to Order 10 Rule 9(4) of the Court of Appeal Rules 2021. The Application was granted and the appeal deemed argued by the Appellants. Learned Respondents’ counsel also adopted the Respondents’ brief of argument and urged that the appeal be dismissed.
RESPONDENTS’ PRELIMINARY OBJECTION
I have stated the grounds of the preliminary objection supra. The Respondents also relied on the affidavit attached to the notice of preliminary objection deposed to by Veronica Etim Udofia, a litigation secretary in the law firm of Kanu G. Agabi (CON, SAN) & Associates counsel of the Respondents. She averred that A. E. Okpa Esq. was the counsel of the Respondents at the lower Court, but he was not initially briefed by them to represent them in this appeal as at 27th November 2015 when the notice of this appeal was served on him, at his chambers in his absence by the Appellants. That he did not resume work in the chambers until March 2016 and when he tried to locate the Respondents to inform them of the pendency of this appeal, he found that they had all relocated to Akwa Ibom State without leaving any addresses that they can be reached.
However, the 3rd Respondent returned to Calabar on the 22nd of October 2021 and was informed that the A. E. Okpa Esq. has been looking for her. She then visited the office of the counsel and was informed of the notice of this appeal served on him for her. It was then that she instructed him to represent all the Respondents, though the 2nd and 3rd Respondents’ whereabouts is still unknown and they have not been served personally with the notice of this appeal.
As indicated above, the argument on the preliminary objection was canvassed in paragraphs 3.0 to 4.4.7 of the Respondents’ unpaginated joint brief of argument. On the first ground of objection regarding non-service of the notice of appeal personally on the 2nd and 3rd Respondents, learned counsel relied on Section 36(1) of the 1999 Constitution of Nigeria 1999 as amended and Order 2 Rule 1 of the 2016 Rules of this Court to submit that personal service of the notice of appeal being an originating process on the Respondents is mandatory and fundamental. That the address of service of the Respondents that the Appellants provided on their notice of this appeal, being “E. Okpa Esq. Kanu Agabi & Associates, Calabar” was not the personal addresses of the Respondents but of the counsel that represented them at the trial Court. Learned counsel relied on several decisions of the Apex Court including ODEY VS. ALAGA & 2 ORS. (2021) LCN/4974 (SC), SKEN CONSULT (NIG.) LTD VS. UKEY (1981) 1 SC 4, and ADEGBOLA VS. OSIYI & ORS.(2018) 4 NWLR (PT. 1608) 1, in support of his argument.
On the second ground of objection, the Respondents submitted that the Appellants distilled eight issues for the determination of this appeal and none of those issues was generated from any of the four grounds of appeal. He argued that Order 7 Rule 4 of this Court’s 2016 Rules prohibits an Appellant from being heard on any ground of appeal not mentioned in the notice of appeal, except with the leave of this Court. He urged the Court to invoke the provisions of Order 7 Rule 4 to strike out all the 8 issues raised by the Appellants in their brief of argument for being incompetent and strike out the grounds of appeal for being for want of issues upon which the notice of appeal can be predicated and for want of jurisdiction. He relied on the cases of AKERE VS. GOV. OF OYO STATE (2012) 12 NWLR (PT. 1314) 240 (SC) and MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR (PT. 1322) 341 and others for support.
On the third ground of objection, it was submitted that any ground of appeal from where no issue is formulated is deemed abandoned. That since none of the eight issues for the determination of this appeal raised in the Appellants’ brief was formulated from the grounds of appeal, the grounds of appeal are deemed abandoned on the authority of the case of ABE VS. AKAAJIME (1989) 4 NWLR (PT. 113) 95. We were urged upon to invoke the provisions of Order 7 Rule 6 of the 2016 Rules of this Court to strike out the notice of appeal for being incompetent.
In arguing ground four of the preliminary objection, the learned Respondents’ counsel submitted that it is the law that grounds of appeal must relate to the decision and should constitute a challenge to the ratio of the decision appealed against. He submitted that a complaint in a ground of appeal on an issue not canvassed at the trial Court is a fresh issue that can only be raised with the leave of this Court on appeal. That the Appellants’ grounds 1 and 2 of appeal are complaints on matters that were not canvassed at the trial Court and which were also not part of the decision of the lower Court appealed against. He submitted that the Appellants having not obtained the leave of this Court before raising those grounds of appeal, the said grounds and issues raised from them, if any, are incompetent. He relied on the case of IDIKA VS. ERISI (1988) 2 NWLR (PT. 78) and others in support and in urging us to uphold the preliminary objection.
The Appellants did not see it fit to file Appellants’ reply brief to respond to the argument canvassed in support of the preliminary objection raised and argued by the Respondents. It means they have no answer to the preliminary objection, and they are deemed to have conceded to the argument canvassed in support. That not withstanding, I will still determine the merits of the grounds of the preliminary objection.
On ground one of the objection, it is elementary that a notice of appeal is the originating process commencing an appeal. Order 2 Rule 1(a) of the Court of Appeal Rules 2021 provides:
Every Notice of Appeal shall, subject to the provisions of Order 2 Rule 8, be served personally or by electronic mail to the electronic mail address of the Respondent: provided that if the Court is satisfied that the notice of appeal has in fact been communicated to the Respondent, no objection to the hearing of the appeal shall lie on the ground that the Notice of Appeal was not served in accordance with this Rule.
The same provisions regarding personal service is also provided under the 2016 Rules, with the introduction of electronic mail service as the new input in the supra 2021 Rules.
Now, the facts deposed in the affidavit in support of this preliminary objection show that though the Respondents’ counsel to whom the notice of appeal was served was not initially briefed by the Respondents to represent them in this appeal, he was their counsel at the trial Court and he brought the notice of appeal to the attention of the 1st Respondent who instructed him to represent all the Respondents in this appeal. This situation falls within the proviso in the above cited Rule 1(a) of Order 2 of this Court’s Rules, and the Counsel’s appearance for all the Respondents has satisfied me that the Notice of this appeal has, in fact been communicated to all the Respondents. This ground of objection is dismissed.
Ground two of the preliminary objection is that Appellants’ grounds 1 and 2 of appeal are new or fresh issues that were not canvassed by the parties at the trial Court and which did not form part of the decision appealed against. It is the law that an appeal is filed against the ratio decidendi of the judgment of the trial Court and not generally against an obiter dictum or incidental opinion of the trial judge expressed in the decision. See K.R.K. HOLDINGS (NIG.) LTD VS. FBN & ANOR (2016) LPELR-41463 (SC) and others on this trite principle of the law. However, where a party desires to raise a fresh issue that was not raised and pronounced upon by the trial Court, the law still allows him to do that, but with the leave of this Court sought and after due notice to the opponent party. That is why Order 7 Rule 8 of this Court’s 2021 Rules provides that a Notice of Appeal may be amended by or with the leave of Court at any time.
Now grounds 1 and 2 of this appeal and their particulars are:
GROUND 1
The trial Judge erred in law when he gave judgment against the appellant without a hearing on the application of the Appellants filed on 14th February 2014
PARTICULARS OF ERRORS
The trial Judge refused to hear the appellants’ application on the ground that no such provisions exist in the fundamental right enforcement rules in spite of Order XV Rule 4 which provides to (sic) instances not covered by the (sic).
GROUND 11
The learned trial Judge erred in law when he neglected or refused to deliver judgment on the appellants counter claim.
PARTICULARS OF ERRORS
The refusal to deliver judgment on the appellants counter application is a manifestation and breach of appellants’ right to fair hearing as entrench (sic) in Section 36 of the Constitution of the Federal Republic of Nigeria.
The judgment of the trial Court appealed against is contained in pages 171 to 177 of the record of proceedings. In page 176, the learned trial Judge found and held that:
The 1st to 3rd Respondents on 14/6/2014 filed a motion for extension of time to file their processes. The motion was abandoned and was not taken. It is accordingly struck out. The said 1st to 3rd respondents have placed no defence before this Court.
Similarly, the application of one Emmanuel Abang Esq. for the respondents not having been taken and granted nor moved, is accordingly struck out, same having been abandoned. It is (sic) filed on 14/2/2014.
The above holding reproduced supra was part of the judgment appealed against because, the learned trial Judge struck out the ‘counter motion’ of the Appellants filed on the 14th of February, 2014. This is the complaint of the Appellants by their grounds 2 and 3 of appeal. So it formed part of the decisions of the trial Court, and not fresh or new issues, contrary to the argument of the Respondents under ground (b) of their preliminary objection. The two grounds of objection lack merit and they are hereby dismissed.
The Respondents’ 3rd–5th grounds of preliminary objection, i.e. grounds (c), (d) and (e) are related, being an attack on the eight issues formulated by the Appellants in their brief of argument. The Respondents argued that the Appellants’ 8 issues did not arise from or were not distilled from the grounds of appeal.
It is trite that appeals are determined on the issues raised by the Appellant which issues must be distilled from the grounds of appeal. Any issue not related to or which does not arise from the grounds of appeal is incompetent and liable to be struck out. See CHIADI VS. AGGO (2018) 2 NWLR (PT. 1603) 175 (SC) and OKONOBOR VS. D. E. S. T. & CO. LTD (2010) 17 NWLR (PT. 1221) 181 (SC).
In this appeal, there are only four grounds of appeal contained in the notice of appeal. However, the Appellants submitted eight (8) issues for the determination of the appeal without tying any of the eight issues to any of the grounds of appeal. These 8 issues are already reproduced at the beginning of this judgment, and the Appellants clearly proliferated the issues being more than the grounds of appeal. This is unacceptable on appeal as decided severally by this Court and the Supreme Court. It the judicial consensus that proliferation of issues for determination of appeal makes the issues incompetent and liable to be struck out leaving the grounds of appeal bare with no issues distilled from them. The effect is that the Appellant has no valid appeal for the Court to determine. See OSAKUE VS. FCE, ASABA (2010) 10 NWLR (1201) 1 and MKEM & ORS. VS. ABI & ORS. (2013) LPELR-22851 (CA).
Secondly, the Appellants’ issue 2 is related to the delivery of judgment by the trial Court on the 17th November 2015 “after 10 months judiciary (staff) industrial action” without notice to the Appellants. Issue 4 relates to estoppel etc. These issues are not mentioned in the grounds of appeal. Further, since there was proliferation of the issues, I cannot really determine which issue is distilled from which ground of appeal and it is not my duty to do sieving of the issues and attach them to grounds of appeal. Moreover, the 8 issues are couched in such an inelegant and chaotic language that I have difficulty understanding them.
For all I have stated, I am in total agreement with the argument of the Respondents under these grounds of objection and I uphold it. Consequently, the preliminary objection succeeds in part as per grounds (c), (d) and (e). Grounds (a) and (b) are dismissed. The Appellants’ 8 issues formulated from the four (4) grounds of appeal are incompetent having been proliferated and not related to the grounds of appeal. They are hereby struck out, to the effect that no issue is distilled from the grounds of appeal. The appeal is therefore incompetent and this Court has no jurisdiction to determine it and it is hereby struck out by me.
DETERMINATION OF THE APPEAL ON THE MERIT.
In the event that I am wrong in my upholding the Respondents’ preliminary objection partly, I will proceed to determine the appeal on the merits because I am an intermediate Court. I adopt the Respondents’ four issues for my determination of the appeal.
ISSUE 1
Whether in the light of the failure of the Appellants to distill any of their issues from any of the grounds of appeal contained in the notice of appeal, there is any competent ground of appeal upon which the Notice of Appeal can stand.
In arguing this issue, the learned Respondents’ counsel reiterated as he did in the Respondents’ preliminary objection that none of the Appellants’ 8 issues for determination arose from any of the grounds of appeal. That, the grounds of appeal are incompetent and this Court has no jurisdiction to determine this appeal. He urged this Court to dismiss this appeal.
The Appellant did not file any reply brief to answer the argument on this issue, which is the same as the Respondents’ grounds of the preliminary objection that has already been determined supra.
I have also reproduced the grounds of appeal and the Appellants’ proliferated 8 issues formulated from them in my determination of the preliminary objection. I therefore adopt all that I have stated in the resolution of the preliminary objection supra in resolving this issue in favour of the Respondents, to the effect that this appeal is incompetent and this Court has no jurisdiction to determine it.
ISSUE TWO
Whether the lower Court did not give a hearing to the 4th to 7th Appellants’ Application filed on 14/2/2014.
In arguing this issue under issue No. 1 of the Appellants’ brief, the learned counsel referred to page 168 of the record of appeal which shows that the matter came up for hearing before the trial Court on the 30th October 2014 and was purportedly adjourned to 18/06/2014 for argument, thereby backdated for more than 4 months. He accused the trial Court to have ‘doctored or concocted’ the record, in page 168 paragraph 3. While the record shows that the matter was adjourned to 18/06/2014, the trial Court resumed sitting on the 24th November 2014 without giving notice to the Appellants, and heard the Respondents’ motion.
He also pointed out that the Respondents filed a further affidavit on the same 24th November 2014 that the application was argued, without serving that process on the Appellants. Further that there is no proof of service of the hearing notice for that date or the service of the Respondents’ further affidavit on the Appellants on record of appeal. He referred us to page 155 of the record of appeal to support this contention and also placed reliance on the cases of JIKANTORO VS. DANTORO (2004) ALL FWLR (PT. 390) 397 and WEMA BANK VS. ODULAJA (2000) 76 LRCN 561 to the effect that failure to serve hearing notice of the Court’s proceedings is fatal to that proceeding.
On their part, the Respondents referred us to pages 72-80 of the record of appeal where the Appellants’ counter motion for the enforcement of their fundamental rights is copied. The learned counsel submitted that there is no provision in the Fundamental Rights Enforcement Procedure Rules 2009 that supports that application. They also insisted that the Appellants had notice of the hearing date of 24/11/2014 because they were present on 30/10/2014 when the suit was adjourned to that date as shown on page 168 of the record of appeal. There was therefore no requirement for the issuance of hearing notice to the Appellants. It was because of their absence that the Respondents applied that the Appellants’ motion be struck out having been abandoned and it was granted by the trial Court.
RESOLUTION
Service of hearing notice on a party who is entitled to be served is fundamental to the jurisdiction of the Court in any proceeding before it. This is because by the provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, every person in Nigeria is entitled to fair hearing in the determination of his civil rights and obligation. This means that a Court of law cannot and should not give a judgment against a person unless he is given adequate opportunity to be present in the proceedings determining his rights or obligation and be heard. See TECHNIP VS. A.I.C. LTD (2016) 2 NWLR (PT. 1497) 421 (CA), NUT TARABA STATE & ORS. VS. HABU & ORS. (2018) LPELR-44057 (SC) and DARMA VS. ECOBANK (2017) LPELR-41663 (SC).
A judex must therefore be absolutely certain and must also state in the Court’s record clearly that a party absent in the proceedings was notified of that date before proceeding. Otherwise, any steps taken where there is no service or proper service of the hearing notice would be a complete nullity and liable to be set aside on appeal. This is crucial to adjudication and it can never be over emphasized.
In this case, it must be determined whether the Appellants were properly notified of the hearing of their counter motion filed on 14/2/2014 before it was struck out by the trial Court. This is regardless of whatever its nature is or how unreasonable it was or whether the Fundamental Rights Enforcement Procedure Rules provide for filing of such counter motion or a counter claim in such proceedings. These issues can only arise in the determination of motion after due notice of its hearing is given to Appellants.
The record of proceedings of 24th November 2014 is contained in page 169 of the record of appeal. The learned trial Judge recorded that the Appellants (Respondents in that proceeding) were absent. Their counsel was also absent. After that, the Respondents’ counsel moved the main application for the enforcement of the Respondents’ fundamental rights, after that, he prayed that the Appellants’ motion be struck out.
There was nothing on the record of proceedings of that date to indicate that the Appellants were aware that the matter was listed for hearing. The previous proceeding (before 24/11/2014) was on the 30th October 2014 and the Appellants’ counsel was in Court. The matter was adjourned to 18/6/2014, backward, and it is apparently an error, because it is not normal for cases in Court to be adjourned backward. This should have alerted the learned trial Judge to ensure that the Appellants were aware of the date the motions were called for hearing. Rather, in the judgment of the trial Court, particularly in page 176 of the record, the learned trial Judge made a finding of fact and held that:
Similarly the application of one Emmanuel Abang Esq. for the respondents not having been taken and granted nor moved, is accordingly struck out same having been abandoned. It is filed on 14/2/2014.
This finding of the learned trial Judge is not supported by any evidence on record; and it is therefore perverse and cannot be allowed to stand. I therefore hold that the proceedings conducted on the 24th November 2014 without any evidence of notice of that date sent to the Appellants amount to the infringement of the Appellants right to fair hearing guaranteed by Section 36(1) of the Constitution of Nigeria, 1999 as amended. Consequently, the entire proceedings of that date leading to the judgment of the trial Court are hereby declared null and void. This issue is resolved in favour of the Appellants.
Having resolved issue two in favour of the Appellant to the effect that the entire proceedings from which the judgment of the trial Court appealed against was delivered are null and void, I cannot proceed to determine the remaining two issues as that will amount to an exercise in futility. On this issue alone, I allow this appeal and set aside the judgment of the trial Court.
However, the appeal, having been found to be incompetent as per my finding on the Respondents’ preliminary objection supra, is still struck out. I made no order for cost.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had a preview of the lead judgment just delivered by my learned brother, Balkisu B. Aliyu, JCA. I agree entirely that the appeal is incompetent and ought to be struck out.
In the appellate Courts, appeals are argued on issue(s) distilled from the ground(s) of appeal. Consequently, an argument outside the issues, and of course the grounds of appeal, go to no issue.
In the instant case, the appellant distilled eight (8) issues from four (4) grounds of appeal. It is prolix to for instance predicate two issues on a single ground of appeal.
I too allow the appeal and abide by the consequential orders.
ADEMOLA SAMUEL BOLA, J.C.A.: I read in advance the judgment of my learned brother, BALKISU BELLO ALIYU, JCA. I do agree with his reasons and conclusions and I adopt them as mine.
I abide by the conclusion that this appeal has merit. The judgment of the lower Court is hereby set aside.
I abide by the consequential orders made.
Appearances:
ABSENT For Appellant(s)
A. E. OKPA, ESQ. For Respondent(s)