CHIEF HUMPHREY EZEOFOR v. HONEY KING MEDIA LIMITED
(2018)LCN/12398(CA)
In The Court of Appeal of Nigeria
On Thursday, the 29th day of March, 2018
CA/J/162/2017
RATIO
APPEAL: WHETHER THE APPELLATE COURT CAN REFORMULATE ISSUES
“The law is settled that an appellate Court can reformulate issues formulated by the parties to an appeal. This power of appellate Court to reformulate issues is operative where a Court finds that there is proliferation of issues or the issues formulated or posed for determination are clumsy or not clear, it is empowered to reformulate the issues in an appeal. This is to give the issue or issues distilled by a party or the parties precision and clarity. The purpose of reframing issue or issues is to lead to a more judicious and proper determination of an appeal. In other words, the purpose is to narrow the issue or issues in controversy in the interest of accuracy, clarity and brevity. See A.I.B. LTD. V. I.D.S. LTD. (2012)17 NWLR (Pt. 1328) Pg. 1 at Pg. 31 PARAS B-G.” PER ADAMU JAURO, J.C.A.
FUNDAMENTAL RIGHT: RIGHT TO FAIR HEARING
“To begin with, let me define fair hearing in relation to a case. The term fair hearing in relation to a case, means that the trial of the case or the conduct of proceedings thereof is in accordance with the relevant law and rules in order to ensure justice and fairness. See S.I.E.C. EKITI STATE V. N.C.P. (2008)12 NWLR (Pt.1102) P. 720 at P. 750 PARAS H-A, UMARU V. STATE (2002)9 NWLR (Pt.771)90. In the case OGENE V. OGENE (2008)2 NWLR (Pt.1070) P. 29 at P. 44 PARAS D-F. Fair hearing was defined within the meaning of Section 36(1) of the 1999 Constitution to mean a trial or investigation conducted according to all Rules formulated to ensure that justice is done to the parties. It is an indispensable requirement of justice that an adjudicating authority to be fair and just and shall give both sides opportunity to present their case.” PER ADAMU JAURO, J.C.A.
JURISDICTION: POWER OF JURISDICTION
“It has been settled in a plethora of cases that a Court is competent to hear a matter when:
a. It is properly constituted as regards member and qualifications of the bench, and no member is disqualified for one reason or another, and
b. 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
c. The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of its jurisdiction.
See MADUKOLU V. NKEMDILIM (1962)2 NCNLR 341; NEPA V. EDEGBERO (2002)18 NWLR (Pt. 798) 79; A.G. LAGOS STATE V. DOSUNMU (1989)3 NWLR (Pt. 111) 552; IBEANU V. OGBEIDE (1994)7 NWLR (Pt. 359) 697 AND GOMBE V. P.W. (NIG.) LTD. (1995)6 NWLR (Pt. 402) 402.” PER ADAMU JAURO, J.C.A.
JURISDICTION: WHERE AN ACTION IS NOT PROPERLY CONSTITUTED FOR WAT OF PROPER PARTIES
“In other words the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless they are parties to the action instituted by the plaintiff. There must be a question in the action which cannot be effectually and completely settled unless he is a party. See GREEN V. GREEN (1987)3 NWLR (Pt. 61)480, D.K. CONTACT-POINT V. PROGRESS BANK (1999)5 NWLR (Pt. 604)631 at 634, P.D.P. V. ABUBAKAR (2004)16 NWLR (Pt. 900) 455 at 467. The law is settled that where an action is not properly constituted for want of proper parties, the Court cannot competently deal with the matter in controversy, that is as regards the rights and interests of the parties since the proper parties are not before the Court. See G & T INVESTMENT LTD. V. WITT & BUSH LTD. (supra).” PER ADAMU JAURO, J.C.A.
Before Their Lordships
ADZIRA GANA MSHELIAJustice of The Court of Appeal of Nigeria
ADAMU JAUROJustice of The Court of Appeal of Nigeria
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODUJustice of The Court of Appeal of Nigeria
Between
CHIEF HUMPHREY EZEOFORAppellant(s)
AND
HONEY KING MEDIA LTDRespondent(s)
ADAMU JAURO, J.C.A.(Delivering the Leading Judgment):
This appeal emanated from the decision of the Plateau State High Court of Justice sitting on appeal, coram Hon. Justice David G. Mann and Hon. Justice N.L. Musa in Appeal No. PLD/J51A/2016 delivered on the 7th day of October, 2016.
The facts of the case that gave rise to this appeal as can be gleaned from the record of appeal was that, the respondent was a tenant of the appellant occupying an office accommodation in Jos, Plateau State. On the 23rd December, 2011, the tenancy expired but the respondent refused to renew the said tenancy by paying the rent and also refused to vacate the appellant’s premises. Dissatisfied with the conduct of the respondent, the appellant took out a writ of summons issued by the Senior District Court Jos, Plateau State against the respondent. The writ of summons was served on the respondent on the 3rd April, 2012 through its Secretary. On the 3rd May, 2012, the case was first mentioned before the trial District Court, though the respondent was not in Court nor represented and the case was adjourned to 18th July, 2012. The case proceeded to trial on the 18th July, 2012, 19th September, 2012 and 7th December, 2012 all in the absence of the respondent and without proof of service of hearing notices of the said dates on the respondent. Judgment was given in favour of the appellant by the trial District Court on 7th December, 2012.
By the above judgment, the trial Court executed, levied and sold by public auction of the respondent?s movable properties. Aggrieved with the judgment of the trial and the said execution, the respondent filed a motion on notice dated 14th February, 2013 before the trial and sought for the following reliefs:
1. An order staying further execution of judgment on this case pending the hearing and determination of this motion on notice
2. An order extending the time within which to appeal to set aside the DEFAULT JUDGMENT of this Hon. Court entered in this case on the 7th December, 2012 as same was not heard and/or determined on the merits
3. An order setting aside the DEFAULT JUDGMENT of this Honourable Court entered in this case on the 7th December, 2012 as same was not heard and/or determined on the merits.
4. An order setting aside the DEFAULT JUDGMENT of this Honourable Court entered in this case on the 7th December, 2012 as same is a nullity for failure to serve Hearing Notices against the Hearing date and all other subsequent dates in the case as a whole.
5. An order setting aside the DEFAULT JUDGMENT of this Honourable Court entered in this case on the 7th December, 2012 as same is a nullity having been obtained by fraud.
6. An order setting aside the DEFAULT JUDGMENT of this Honourable Court entered in this case on the 7th December, 2012 as same is a nullity for the Court?s total lack of jurisdiction to hear the matter ab-initio.
7. An order setting aside the EXECUTION OF JUDGMENT carried out by the Deputy Sheriff/Bailiffs of this Honourable Court in this case of 6th February, 2013 as same is a nullity having been based on a null and void Judgment.
8. An order releasing to the judgment Debtor/Applicant all properties/items removed from the premises formally occupied by the applicant listed and filed by Deputy Sheriff/Bailiffs in the case file as per the inventory of attached items.
The motion was heard and dismissed by the trial Court on the 2nd May, 2013. However, on the 12th November, 2013, the respondent filed an application before the High Court of Plateau State seeking for extension of time to appeal against the Ruling of the senior District Court delivered on the 2nd May, 2013. The respondent further filed notice of appeal before the Lower Court against the ruling of 2nd May, 2013. On the 16th June, 2016, the lower Court granted the respondent?s application for extension of time to appeal. Based on this order, the appeal before the lower Court proceeded. Parties filed their respective addresses before the lower Court. In considering the merit of the appeal, the learned judges of the lower Court set aside the ruling delivered on 2nd May, 2015 by the trial Senior District Court and in its place granted the respondents motion of 14 February, 2013 particularly reliefs 1, 2, 3, 4, 7 and 8.
Dissatisfied with the decision of the lower Court, the appellant appealed to this Court vide notice of appeal dated 3rd May, 2017. The appeal was based on the seven grounds of appeal. The grounds and their particulars are contained in the record of appeal. Pursuant to the Rules of Court, parties filed and exchanged their respective briefs of argument. The appellant’s brief of argument settled by Luke I. Muonanu Esq. is dated 17th May, 2017 and filed on 19th May, 2017. The appellant’s counsel also filed appellant’s reply brief in response to the respondent’s preliminary objection and amended respondent’s brief which is dated 18th October, 2017 and filed on 19th October, 2017. The respondent’s amended brief of argument was settled by Olufemi Olubiyi Esq. and is dated 10th October, 2017 and deemed filed on 17th October, 2017.
The appeal was heard on the 16th January, 2018. Learned counsel for the appellant Mr. Luke I. Muonanu adopted the appellant’s brief of argument as well as the appellant’s reply brief. He urged the Court to set aside the judgment of the High Court of Plateau State delivered on the 7th October, 2016 and to uphold the Ruling and the Judgment of the Senior District Court, Jos, Plateau State delivered on the 2nd may, 2013 and 7th December, 2012 respectively and allow this appeal. For his part, learned counsel for the respondent Mr. Olufemi Olubiyi adopted the amended Respondent’s.
Brief wherein an argument in respect of the preliminary objection was embedded.
Before delving into considering the merit of this appeal, a consideration will be made on the respondent?s preliminary objection. From the notice of preliminary objection filed by the respondent on 23rd June, 2017, the objection is against ground 1 of the grounds of appeal as well as issue No.1 of the appellant’s issues for determination and the ground of the objection is that the said ground No. 1 is based on a matter/issue for which leave of Court is required but for which leave was not first sought and obtained before being filed and argued. He therefore raised a lone issue for determination from the said ground of objection as follows:
‘Whether issue No. 1 raised by the appellant is not incompetent having been raised for the 1st time in the Court of appeal and having not been raised by the appropriate party.’
In arguing this issue, learned counsel for the respondent submitted that the appellant’s issue No. 1 together with the arguments and authorities proffered in support of same is heavily misconstrued in law. He contends that at no time while the case was being heard by the two lower Courts was the issue of non-joinder ever mentioned or formally raised and same did not in any way form part of the decision(s) of either Courts. Learned counsel submits that the appellant having failed to seek leave of the Court(s) to argue fresh issue(s), such an issue is incompetent and same ought to be discountenanced and struck out. Reliance was placed on the case of LIPEDE V. SONEKAN (1995)1 SCNJ 185 Pp. 196-197.
It was further submitted that the appellant’s issue No. 1 having not been raised by the Deputy Sheriff himself is not competent. He argued that the Deputy Sheriff himself did not at any point in time seek to be joined as a party neither did the appellant apply to Court to have him joined as a necessary party and having not so done, it does not lie in the mouth of the appellant to complain about the non-joinder of the Deputy Sheriff. He urged the Court to refuse the appellant’s attempt as being a busybody. He referred to the case of EBOADE V. ATOMESIN (1997)5 SCNJ 13 at 22-23 LINES 40-50.
In his response, learned counsel for the appellant submits that a preliminary objection shall not be competent when it is filed against one or more grounds of the appeal rather than against the entire appeal for fundamental defects. He argued that the preliminary objection in the instant case is challenging only ground one of the appeal and therefore incompetent. Reliance was placed on the case of SHERIFF V. P.D.P. (2017)14 NWLR (Pt. 1585) 212 @ 314-315 PARAS B-A. He urged the Court to dismiss the preliminary objection for lacking merit and proceed to hear the appeal on its merit.
The law is trite that the purpose of preliminary objection is to bring the hearing of the appeal to an end for being incompetent or fundamentally defective. Consequently, a successful preliminary objection terminates the appeal. In this appeal, the preliminary objection was filed against one ground of appeal, and there are other grounds of appeal that can sustain the appeal, a preliminary objection is inappropriate. Preliminary objection is only filed against the hearing of an appeal and not against one or more grounds of appeal which cannot stop the Court from hearing the appeal. In the instant case, the respondent’s preliminary objection was against ground one of the appellant’s grounds of appeal, the respondent ought to have filed a motion on notice since the preliminary objection, if successful, would not have terminated the hearing of the appeal as there were other grounds of appeal to sustain the appeal. See N.N.P.C. V. FAMFA OIL LTD. (2012)17 (Pt. 1328) P. 148 at P. 185-186 PARAS F-B, GENERAL ELECTRIC CO. V. AKANDE (2010)18 NWLR (Pt. 1225)596. Flowing from the foregoing, the respondent’s preliminary objection is incompetent and is hereby struck out.
Having resolved the preliminary objection in this appeal, I will now proceed to determine the merit of this appeal. From the appellant’s seven grounds of appeal the learned counsel distilled seven issues for determination as follows:
1. Whether the appellate High Court had jurisdiction to entertain the respondent’s appeal in the absence of Deputy Sheriff who was one of the parties before the appeal.
2. Whether the appellate High Court can set aside the Ruling which dismissed Respondent’s application seeking for stay of execution by senior District trial Court dated 14/1/2013 when there was no valid pending appeal filed against the judgment.
3. Whether the Respondent’s refusal/neglect to participate in the proceedings after been duly and personally served with writ of summons and other relevant originating processes by the trial Court occasioned denial of fair hearing.
4. Whether without the trinity leave first sought and obtained to appeal out of time, the respondent’s notice of appeal filed out of time on the 12th day of November, 2003 is competent.
5. Whether the trial Court is duty bound to issue and serve hearing notice on the respondent notwithstanding that it was duly served personally with the writ of summons and other relevant originating processes with date and venue of the trial clearly stated therein, who opted/neglected to enter an appearance, and participate in the proceedings, thus, judgment delivered in its absence.
6. Whether an appeal against a completed judgment levied and executed in accordance with the law, amounts to an academic exercise.
7. Whether it does not amount to an abuse of Court process when the respondent appealed against the Ruling by trial Court when refused its application seeking for stay of execution instead of filing a further application.
On the side of the respondent five issues for determination were formulated as follows:
i. Whether the appellate High Court had jurisdiction to entertain the respondent’s appeal in the absence of Deputy Sheriff who was one of the parties before the appeal.
ii. Whether an appeal pending before the Plateau State High Court of justice can possibly be assailed by a respondent on the basis of being defective and/or incompetent.
iii. Whether in view of the fact that the trial Court sat taking proceedings and/or witnesses seven (7) different times, all in the absence of the respondent/defendant without once making an order for the service of, or actually once ensuring the service of hearing notice is not a denial of fair hearing.
iv. Whether an appeal filed against a decision refusing to set aside an execution based on a default judgment can ever be regarded as an appeal against a completed and academic act, particularly so when the act was not completed at the time of the decision, and particularly so when ‘completion’ was only conveniently achieved before the expiration of the time for appeal; and whether in any event an execution completed or not cannot at any time be set aside in appropriate cases where same was based on a null and void judgment.
v. Whether filing a motion to stay of execution that was completed (hurriedly to unjustly gain an improved position) would not have been an abuse of Courts process seeking to reverse what was already done.
The law is settled that an appellate Court can reformulate issues formulated by the parties to an appeal. This power of appellate Court to reformulate issues is operative where a Court finds that there is proliferation of issues or the issues formulated or posed for determination are clumsy or not clear, it is empowered to reformulate the issues in an appeal. This is to give the issue or issues distilled by a party or the parties precision and clarity. The purpose of reframing issue or issues is to lead to a more judicious and proper determination of an appeal. In other words, the purpose is to narrow the issue or issues in controversy in the interest of accuracy, clarity and brevity. See A.I.B. LTD. V. I.D.S. LTD. (2012)17 NWLR (Pt. 1328) Pg. 1 at Pg. 31 PARAS B-G.
In the instant case, flowing from the above settled principle of law, the following issues for determination if adopted will determine the crux of this appeal, thus:
1. Whether the appeal before the lower Court was properly constituted to give the lower Court jurisdiction to determine the appeal.
2. Whether the lower Court was right in setting aside the decision of the trial Court for failure to observe fair hearing in a proceedings before it.
In considering the first issue for determination, the appellant’s issues 1, 4, 6 and 7 will be taken together while issue two will concentrate on the appellant’s issues three and five.
In arguing the first issue, learned counsel for the appellant submitted that the High Court in its appellate jurisdiction lacked the enabling jurisdiction to entertain the appeal of the respondent in the absence of Deputy Sheriff who was joined as a necessary party in the application to set aside judgment of the lower trial Court. He referred to the cases of O.K. CONTACT-POINT V. PROGRESS BANK (1999)5 NWLR (Pt. 604) Pg. 631 at 634 PARAS A-C and PDP V. ABUBAKAR (2004) 16 NWLR (Pt. 900) Pg. 455 at 467 PARAS F-H on the meaning of necessary party, that a person in whose absence, the questions or issues in controversy cannot be effectively and effectually determined. He contended that in the instant case, the execution of the judgment appealed against had been levied by the Deputy Sheriff of the trial Court before the purported appeal was filed.
Learned counsel contended that the legal effect of the failure of the Respondent to join the said Deputy Sheriff of the lower trial Court was that it robbed the High Court the jurisdiction to entertain the appeal of the respondent. Reliance is placed on the cases of LAWAL V. P.G.P (NIG.) LTD. (2001)17 NWLR (Pt. 742) Pg. 393 at 399 AND HOPE UZODINMA V. CHIEF ACHIKE UDENWA & 6 ORS. (2004)1 NWLR (Pt. 859) at 35 PARAS E-H. Learned counsel further submitted that where a Court of law as in the instant case lacked jurisdiction to entertain and determine a case, its proceedings and judgment are a nullity. He referred to the cases of A.G. LAGOS STATE V. DOSUNMU (1989)3 NWLR (Pt. 111) Pg. 557 at 566 PARA AND BEST VISION CENT. LTD. V. U.A.C. N.P.D.C. PLC. (2003)13 NWLR (Pt. 838)594 at P. 598.
It was also the contention of the learned counsel that the notice of appeal filed on the 12/11/2013 at the registry of the lower Court against the Ruling of the trial Court of 2/5/2013 was incompetent for the respondent having failed to sought and obtain trinity prayers. Reliance is placed on the cases of A.I.B. LTD. V. PACKO PLAST NIG. LTD. (2003)1 NWLR (Pt. 802)512 at Pp. 512 PARAS G-H AND ABUBAKAR V. DANKWAMBO (2015)18 NWLR (Pt.1491)213 at P. 216 at 234 PARAS G-H. It was further submitted that contrary to Order 27 Rules 1(1) of the District Court Rules and the case of DADA V. SIKUADE (2014)17 NWLR (Pt. 1435)72 Pp. 81 @ P. 114-115 PARAS H-A the notice of appeal before the lower Court was not filed in the registry of the trial Court but rather was filed in the registry of the lower Court.
In another submission, learned counsel contended that the appeal against the instant case amounts to an academic exercise and a waste of the Court’s precious time, because the act had been completed before the appeal was purportedly initiated. He referred to the case of RACE AUTO SUPPLY LTD. V. AKIB (2001)1 NWLR (Pt. 695)463 P. 466 @ 471 PARAS A-B that the Court of Appeal will not make an order of stay of execution in a case where execution had already been lawfully carried out. Reliance was further placed on the cases of AGBAKOBA V. INEC 37 NSCQR (2009) 523 P. 531 @ 580 AND DANIEL V. INEC (2015) 9 NWLR (Pt. 1463) 113 P. 126 @ P. 144-145 PARAS H-B on Courts not to engage in academic issues/exercise. On the basis of these authorities, learned counsel argued that appeal brought after execution of judgment and sale of attached movable properties through public auction by the trial Court, and when the possession of the premises had been given back to the appellant is an academic exercise.
The learned counsel posited that the respondent?s appeal against the dismissed application refusing stay of execution, amounts to an abuse of court process, and the appropriate order the court is expected to make upon coming to the conclusion that its process had been abused is to dismiss the process which constituted the abuse. He referred to the cases of NDABA (NIG) LTD. V. U.B.N. PLC. V. U.B.N. PLC. (2007)9 NWLR (Pt. 1040) 439 P. 444 @ 462 PARAS A-C, D-F, ALLA NANA V. KPOLOKWU (2016)6 NWLR (Pt. 1507)1-P.7 @ 27 PARAS F-G AND LOKPOBIRI V. OGOLA (2016)3 NWLR (PT. 1499)328 P. 349 @ 388 PARAS E-F.
In his reply, learned counsel for the respondent contended that the major focus of the motion that was refused by the trial Court which led to the appeal before the High Court was the default judgment of the trial Court and not execution of same. He submitted that the Deputy Sheriff was just a nominal party that needed to be stayed at that material time. He stated that immediately the execution was wrongly and hurriedly completed, execution and everything that goes with it become irrelevant and unnecessary. He stressed that the relevance of the Deputy Sheriff in this case came to an end when the execution was purportedly completed as he was not relevant in the action leading to the default judgment and therefore cannot be relevant in considering whether or not the default judgment was properly entered in law.
It was submitted that the subsequent and prevailing irrelevancy of execution at the time of actual filing of the initial appeal to the High Court did not in any way affect the propriety or otherwise of the default judgment which remained and continues as an issue that is resolvable on appeal between the party who obtained same and the party against whom same was entered. He further argued that once the default judgment is set aside, the execution must equally fall as it would no longer have anything to sit on.
He referred to the case of MACFOY V. UAC (1962) AC 152 at 160. It was also the contention of the learned counsel that judgment and execution even completed ones as in this case can be set aside as was done in the case of OJUKWU V. GOVERNOR OF LAGOS STATE (1986)1 NWLR (Pt. 18)621 where execution which had been completed was overturned and a party already ejected from a premises was ordered to be reinstated. Reference was further made to the District Court’s Law (Cap. 33) Laws of Northern Nigeria 1963.
In further reply to the appellant’s argument that the respondent’s appeal before the lower Court was incompetent for not seeking and obtaining the trinity prayers before the appeal was filed, learned counsel submits that for all appeals coming from District Courts in Plateau State such as this one, guidance is supplied by the Plateau State High Court (Civil Procedure) Rules of 1987 and not by the Court of Appeal/Supreme Court Act/Rules. He submits that by the provisions of the Plateau State High Court (Civil Procedure) Rules of 1987 particularly Order 44 Rules 1, 15(1) & (2), 16 and 17 appeals such as this one are not permitted to be in any way fettered by little technicalities that are thrown at them.
He submits further that the appellant’s argument on this issue is a misconception of law since attacking/assailing notice of appeal pending before the High Court of Justice in Plateau State on any ground is generally and totally prohibited by the Order and Rules cited above.
In reply to the argument that the appeal before the lower Court was an academic exercise, learned counsel submits that the motion filed inter-alia asking the trial Court to set aside an execution together with the judgment that formed its very foundation, at a time when the said execution was incomplete. He stated that the appellant ought ordinarily to have waited and cautioned himself to see the outcome of the appeal against a decision refusing such a motion. He submits further that any act of bringing the incomplete execution into completion before the time of appeal is over can only be viewed in law as an attempt to overreach and unjustly gain an imagined improved position. He referred to the case of BENSON AGBULE V. WARRI REFINARY AND PETROCHEMICAL CO. LTD. (2013)6 NWLR (Pt. 1350).
The learned counsel contended that execution can always be set aside, especially when its foundation is found to be shaky. He argued that if the foundation collapses, the execution that is placed on it, whether or not it is completed does not make any difference, academic or otherwise. He relied on the case of SKEN-CONSULT (NIG.) LTD. & 1 OR. V. GODWIN SEKONDY UKEY (1981)1 SC 6 at 9 AND Section 67 of the District Courts Law, (Cap. 33) Laws of Northern Nigeria, 1963.
On the argument that the respondent’s appeal was an abuse by Court process, learned counsel submits that the appellant’s argument and authorities proffered in support of that point are heavily misconstrued in law because at the time of filing the appeal, execution had been rushed into completion and there was then nothing to stay. A repeat of the application for stay as at that point in time would have been an error in law since an execution already completed can no longer be stayed.
This issue relates to the jurisdiction of the lower Court to determine the appeal brought before it by the respondent. Jurisdiction is defined as a term of comprehensive import embracing every kind of judicial action. The term may have different meanings in different cons. It has been defined as the limits imposed on the power of a validly constituted Court to hear and determine issues between persons seeking to avail themselves of its process by reference to the subject matter of the issues or to the persons between whom the issues are joined to the kind of relief(s) sought. See G. & T. INVESTMENT LTD. V. WITT & BUSH LTD. (2011)8 NWLR (Pt. 1250) P. 500 at P. 538 PARAS A-B.
It has been settled in a plethora of cases that a Court is competent to hear a matter when:
a. It is properly constituted as regards member and qualifications of the bench, and no member is disqualified for one reason or another, and
b. 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
c. The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of its jurisdiction.
See MADUKOLU V. NKEMDILIM (1962)2 NCNLR 341; NEPA V. EDEGBERO (2002)18 NWLR (Pt. 798) 79; A.G. LAGOS STATE V. DOSUNMU (1989)3 NWLR (Pt. 111) 552; IBEANU V. OGBEIDE (1994)7 NWLR (Pt. 359) 697 AND GOMBE V. P.W. (NIG.) LTD. (1995)6 NWLR (Pt. 402) 402.
In the instant case, the appellant is contesting the jurisdiction of the lower Court to determine the respondent?s appeal on the basis of non-joinder of the Deputy Sheriff as one of the parties before the lower Court, failure to initiate the appeal by due process of law i.e. not seeking trinity prayers, abuse of Court process and that the appeal before the lower Court was an academic exercise. On the first point, non-joinder of the Deputy Sheriff as a party to the appeal, the consequential question that follows is whether the Deputy Sheriff is a necessary party to the appeal before the lower Court. A necessary party has been defined to mean a party who is not only interested in the subject matter of the proceedings but also who in their absence, the proceedings could not be fairly dealt with.
In other words the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless they are parties to the action instituted by the plaintiff. There must be a question in the action which cannot be effectually and completely settled unless he is a party. See GREEN V. GREEN (1987)3 NWLR (Pt. 61)480, D.K. CONTACT-POINT V. PROGRESS BANK (1999)5 NWLR (Pt. 604)631 at 634, P.D.P. V. ABUBAKAR (2004)16 NWLR (Pt. 900) 455 at 467.
The law is settled that where an action is not properly constituted for want of proper parties, the Court cannot competently deal with the matter in controversy, that is as regards the rights and interests of the parties since the proper parties are not before the Court. See G & T INVESTMENT LTD. V. WITT & BUSH LTD. (supra). In the instant case, the appellant’s complaint goes to the non-joinder of the Deputy Sheriff as a party to the appeal before the lower Court which according to him such non-joinder robbed the lower Court of its jurisdiction to hear the appeal.
The question that readily comes to mind is, could the appeal in the lower Court not be effectually and completely determined without the Deputy Sheriff. The respondent posited that the Deputy Sheriff was joined to the application to set aside judgment and stay further execution because of the execution aspect of the application. The appeal before the lower court was a challenge on the default judgment, delivered by the District Court. The deputy Sheriff became a nominal party after default judgment was entered and execution was on going, but once execution was completed he ceases to be of any relevance. In other words the Deputy Sheriff is never needed as a party to establish whether or not a judgment in default can be sustained. Hence the deputy Sheriff is not a necessary party to the appeal before the lower court which was a challenge to the propriety of the default judgment. The appellant?s argument on this point is a misconception of the law and is hereby discountenanced.
On the second point, to wit whether the appeal before the lower Court was initiated by due process of law, under this point the appellant contended that the respondent’s appeal before the lower Court was incompetent for not seeking and obtaining trinity prayers i.e. (a) extension of time to seek leave to appeal (b) leave to appeal; and (c) extension of time to appeal before the appeal was filed.
The law is that the process of appeal either to the High Court, Court of Appeal or the Supreme Court is as embodied in the Rules of the respective Courts. See NIGERIAN NAVY V. LABINJO (2012)17 NWLR (Pt. 1328) Pg. 56 at Pg. 80 PARAS F-H, EGBE V. ALHAJI (1990)1 NWLR (Pt. 128) 546; OREDOYIN V. AROWOLO (1989)4 NWLR (Pt. 114) 172 AND OBA V. EGBERONGBE (1999)8 NWLR (Pt. 685). In the instant case, the appeal before the lower Court was an appeal against the decision of the District Court of Plateau State. The process of appeal before the lower Court is therefore regulated by the Plateau State High Court (Civil Procedure) Rules, (1987). Order 44 of the said Rules provides for appeals from District Court to the lower Court. However, throughout the said order there were no provisions for trinity prayers for an appeal to be valid before the lower Court. Rules 1 of Order 44 provides for an appeal to be lodged in the trial Court within 30 days of the decision appealed from. Though the respondent before the lower Court was out of time in appealing against the decision of the trial but he brought a motion on notice for extension of time to appeal in accordance with Order 44 Rule 7 of the said Rule. See page 5 of the record of appeal. To that extent the appellant?s argument on this point as grossly misconceived.
Another argument canvassed by the appellant was that the respondent?s appeal before the lower Court was an academic exercise which affected the jurisdiction of the Court to determine the appeal. A suit is academic where it is merely theoretical and of no particular utilitarian value to the plaintiff even where judgment is given in his favour. A suit is also academic where it is not related to practical situations of human nature. It is speculative if it is based on speculation, not supported by facts or very low on facts but high in guesses. A suit is hypothetical if it is imaginary, not based on real facts, looks like mirage to believe the defendant and the Court as to the reality of the cause of action, a semblance of the actuality of the cause of action or relief sought. See EZEREBO V. EHINDERO (2009)10 NWLR (Pt. 1148) Pg. 166 at 176-177 PARAS G-A, PLATEAU STATE V. AG, FED. (2006)3 NWLR (Pt. 967) 346 at 419; DIKE V. OKORIE (1990)5 NWLR (Pt. 151)418; OLUBODE V. SALAMI (1985)2 NWLR (Pt. 7)282; OJIEGBE V. OKWARANYIA (1962)2 SC NLR 358. Where an issue submitted to a Court of law amounts to a hypothetical or academic issue, the Court would have no jurisdiction to hear it. See UZUDA V. EBIGAH (2009)15 NWLR (Pt. 1163) P. 1 @ P. 22 PARA C.
In the instant case, from the respondent’s notice of appeal on pages 19-22 of the record of appeal, the basis of his appeal to the lower Court was the denial of fair hearing by the trial Court wherein he sought the order of the lower Court to set aside the Ruling of the trial Court delivered on the 2nd May, 2013. The right to fair hearing in a suit is not only a common law requirement in Nigeria but also a constitutional requirement and it is fundamental to all Court proceedings. See UZUDA V. EBIGAH (supra) at P. 22 PARAS A-C.
Having said that, the appeal founded on the denial of fair hearing cannot be said to be an academic appeal as breach of a party’s constitutional right to fair hearing, vitiates the proceedings of the Court no matter how well conducted.
To this end, the appellant’s argument on this point is grossly misconceived and is hereby discountenanced.
The last argument of the appellant under this issue, was that the respondent’s appeal before the lower Court was an abuse of Court process. The term abuse of Court process means that the process of Court has not been used bona-fide and properly. It also connotes the employment of judicial process by a party in improper use to the irritation and annoyance of his opponent and efficient and effective administration of justice. It is a multiplication of the same action in the same Court being pursued simultaneously by the plaintiff. See JOKOLO V. GOV. KEBBI STATE (2009)11 NWLR (Pt. 1152) Pg. 394 at 426 PARAS C-D. The appellant’s contention under this point was that the respondent should have filed similar motion of the one refused by the trial Court on 2nd May, 2013 instead of filing appeal before the lower Court. The law is that the Court in exercising an appellate jurisdiction can only determine issues that arose out of complaints from the judgment of Court below, in respect of which notice and grounds of appeal were filed and submitted for adjudication. See OWUAMA V. OBASI (2011)1 NWLR (Pt. 1228) Pg. 431 at 447 PARAS G-A. In the instant case, without an appeal being lodged before the lower Court, the said Court would not have had the jurisdiction to hear and determine the respondent’s complaints. The appeal before the lower Court is to my finding not an abuse of Court process.
Having dealt with all the issues raised by the appellant under this issue and found all the issues raised by the appellant as not properly formed in law, this issue is hereby resolved against the appellant.
ISSUE TWO
Whether the lower Court was right in setting aside the decision of the trial Court for failure to observe fair hearing in a proceeding before it.
In arguing this issue, learned counsel for the appellant submits that the respondent was not denied fair hearing for the trial court issued writ of summons and other relevant originating processes served personally on the respondent in accordance with the law. He referred to pages 1 – 4 of the record of appeal. He contends further that on page 23 of the record of appeal, the respondent confirmed being served through its Secretary and the Secretary forgot to draw the attention of the Managing Director or any other officer of the respondent. He submits that service of processes against a corporation on the Secretary is proper and valid service. Reliance is placed on the case of MIDEN SYSTEM LTD. V. EFFIONG (2012)2 NWLR (Pt. 1231) 354 @ 367 PARAS C-D. It was also submitted that a party served with writ of summons and did not react to it cannot accuse the Court of denial of fair hearing. He referred to Section 36(1) of the 1999 Constitution and the cases of NEWSWATCH COMMUNICATIONS LTD. V. ATTAH (2006)1 ALL NLR VOL 11 Pt. 1 Pp. 213 AND MGBENWELU V. OLUMBA (2017)5 NWLR (Pt. 1558)109 Pp. 178 @ 193 PARAS D-F.
It was further the contention of the learned counsel that issuance and service of hearing notice by Courts on a party who knows or is reasonably expected to know the date when the matter is scheduled to come up will amount to over indulgence and for Courts to go out of their ways. He referred to the case of NIRCHANDANI V. PINHEIRO (2001) FWLR (Pt. 48) 1307 RATIO 2. He argued that having been duly and properly served on the respondent the writ of summons and other relevant originating processes, the trial Court was not duty bound to issue and serve a hearing notice on the respondent.
He referred to the case of NWANKUDU V. IBETO (2011) 2 NWLR (Pt. 1231) 354 Pp. 363 @ 369 PARAS B-C. He stressed that none issuance and service of hearing notice to the respondent who was served the writ of summon but negligently opted out of the trial did not amount to denial of fair hearing. He urged the Court to resolve this issue in appellant’s favour.
In his reply, learned counsel for the respondent submits that it is common ground that the respondent was not only absent on the day fixed for mention but was absent on each and every other day fixed by the Court for the conduct of the proceedings leading to the default judgment. He also stated that it is not in dispute that the trial Court never at any point in time throughout the proceedings leading to the default judgment order for service of hearing notice. He contends that the procedure adopted by the trial Court in reaching its judgment was in total disregard to Order 25(1) of the District Courts Rules (Cap. 33) Laws of Northern Nigeria 1963.
It was the submission of the learned counsel that it is mandatory for every Court to not only do justice but to ensure in every case that justice is seen to have been done and it is by reason of this that the twin principles of fair hearing must be shown to have been religiously followed in every case. He referred to the cases of CHIEF L.L.B. OGOLO V. JOSEPH T. OGOLO (2006)5 NWLR (Pt.972), AMANDA PETERS PAM V. A.N.P.P. & 3 ORS. (2008)4 NWLR (Pt.1077) P. 219 at Pp. 245-246 PARAS G-A, INTERNATIONAL BANK PLC. V. GODSPOWER ONWUKA (2009)8 NWLR (Pt.1144) P. 462 at Pp. 472 PARAS E AND 474 PRAS B-E.
Learned counsel maintained that the service of originating process as in this case on the respondent does not discharge the burden/duty on the Court to ensure service of hearing notice against any new date taken/fixed by the Court especially when such a date was taken in the absence of the alternate party. He argued that summons is usually for the day of mention while hearing notice is for the subsequent dates in the proceedings before the trial Court. Reliance is placed on the case of QUEEN OMABUWA V. MADAM MARTHA OWHOFATSHO (2006)5 NWLR 40 Pp. 67 PARAS A-B AND 65 PARAS E-G.
In conclusion, learned counsel urged the Court to hold that the respondent could never have been reasonably expected to have known of the six different fixtures made by the trial Court subsequent to the date for mention and that the gravity of the reliefs sought in the said motion was substantial enough for the Court to have set aside its judgment and opened up the case for a fresh trial particularly so when the Court knew that the judgment was a default judgment. He submits that the High Court was right when it set aside the decision of the trial District Court and urged the Court to dismiss this appeal and affirm the judgment of the lower Court.
To begin with, let me define fair hearing in relation to a case. The term fair hearing in relation to a case, means that the trial of the case or the conduct of proceedings thereof is in accordance with the relevant law and rules in order to ensure justice and fairness. See S.I.E.C. EKITI STATE V. N.C.P. (2008)12 NWLR (Pt.1102) P. 720 at P. 750 PARAS H-A, UMARU V. STATE (2002)9 NWLR (Pt.771)90. In the case OGENE V. OGENE (2008)2 NWLR (Pt.1070) P. 29 at P. 44 PARAS D-F. Fair hearing was defined within the meaning of
Section 36(1) of the 1999 Constitution to mean a trial or investigation conducted according to all Rules formulated to ensure that justice is done to the parties. It is an indispensable requirement of justice that an adjudicating authority to be fair and just and shall give both sides opportunity to present their case. The basic criteria and attributes of fair hearing include:
a) That the Court or tribunal shall hear both sides not only in the case but also in all material issues in the case before reaching a decision which may be prejudicial to any party in the case;
b) That the Court or tribunal shall give equal treatment, opportunity and consideration to all concerned;
c) That the proceedings shall be heard in public and all concerned shall have access to and be informed of such a place of public hearing; and
d) That having regard to all the circumstances in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done. See PAM V. MOHAMMED (2008)16 NWLR (Pt.1112) P. 1 at P. 85 PARAS B-F, KOTOYE V. CBN (1989)1 NWLR (Pt. 98)419.
In the instant case, the respondent’s main grievance before the lower Court was that he was denied fair hearing by the trial Court in a sense that apart from the service of the originating processes on its Company Secretary, no further hearing notice was served on it in all the subsequent proceedings before the trial Court. The appellant’s argument before this Court was that though their learned counsel acknowledged that the respondent was only served with the originating process at the trial Court, but he contends that failure of the trial Court to serve the respondent with the hearing notice will not affect the proceedings of the trial Court and as such does not amount to a denial of fair hearing. It is important to observe that the summons served on the respondent had no date and the plaint on page 3 reflected 23rd May, 2012 as the date fixed for the commencement of the case. Surprisingly, on page 45 of the records, the proceedings was commenced on 3rd May, 2012 not 23rd May, 2012 reflected on page 3. The law is settled that hearing notice is an important process of the Court and a fundamental requirement in an adversary system of adjudication. Where service of a hearing notice is required as in the instant case, any proceedings conducted without due service of it is rendered null and void.
This is because non-service of a hearing notice is a fundamental vice that vitiates the proceedings no matter how well conducted as the Court lacks jurisdiction to entertain the matter. See ESSIEN V. EDET (2004)5 NWLR (Pt.867) P. 519 at P. 536 PARAS B-F, NASCO MANAGEMENT SERVICE V. AMAKU TRANSPORT LTD. (2003)2 NWLR (Pt. 804) 290; MBADINUJU V. EZUKA (1994)8 NWLR (Pt.364) P. 535; AGWRANGBO V. NAKANDE (2000)9 NWLR (Pt.672) 341; ADISA V. TENO ENGINEERING LTD. (2000)1 NWLR (PT. 695) 633; N.B.C. PCC V. EZEIFO (2001)12 NWLR (Pt. 726)11.
The law is also settled that when a matter comes up before a trial Court, it is the duty of the Court to fully satisfy itself that a party to the case was duly served and is aware of the date. See ESSIEN V. EDET (supra) P. 535 PARAS H. In the instant case, the trial Court lacked jurisdiction to hear the case as it did on 18th July, 2012, 19th September, 2012 and 7th December, 2012 as the respondent was not in Court nor represented in all the proceedings of those dates and the trial Court neither ordered for the service of the hearing notice on the respondent nor prove of same produced by the appellant. In view of what has been said, this issue too is resolved against the appellant and in favour of the respondent.
Having resolved all the two issues reformulated for the determination of this appeal against the appellant, it is my humbly view that the appeal lacks merit and is hereby dismissed. The judgment of Plateau State High Court of Justice coram Hon. Justice David G. Mann and Hon. Justice N.L. Musa in Appeal No.PLD/J51A/2016 delivered on 7th October, 2016 is hereby affirmed. I make no order as to costs.
ADZIRA GANA MSHELIA J.C.A.: I had the advantage of reading in draft the judgment of my learned brother Jauro, J.C.A just delivered. I agree with his reasoning and conclusion that the appeal ought to be dismissed. I too dismiss the appeal and abide by the consequential orders contained in the lead judgment, inclusive of costs.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege and opportunity of reading in draft the lead Judgment delivered by my learned brother, ADAMU JAURO, JCA, and I agree with the reasoning and conclusion reached therein.
Fair hearing is so fundamental and is a cardinal principle. It is fair hearing when every reasonable and fair minded observer watching the proceedings is able to come to the conclusion that the Court has been fair to all the parties concerned, which cannot be so said of the proceedings of the trial Court which failed to satisfy itself that the Respondent was dully put on notice.
In consequence therefore, I also find the instant appeal unmeritorious. It hereby fails and is accordingly dismissed.
I make no order as to costs.
Appearances:
L.I. MUONANU ESQ. WITH HIM, E.M. DASOEM ESQ. AND O. OMOLAJA ESQ.For Appellant(s)
OLUFEMI OLUBIYI ESQ. WITH HIM, S.H. ZUBAIRU MRS. AND P.J. YAHAYA ESQ.For Respondent(s)
