CHIEF REMIGIUS CHIDI ARIOLE v. SERGEANT PAUL NWACHUKWU & ORS
(2014)LCN/7645(CA)
In The Court of Appeal of Nigeria
On Friday, the 19th day of December, 2014
CA/OW/239/11
RATIO
APPEAL: ISSUES FOR DETERMINATION; WHETHER ISSUES FOR DETERMINATION MUST BE RAISED FROM THE GROUNDS OF APPEAL
Issues for determination must be raised from the grounds of appeal. An issue not distilled from a ground or grounds of appeal is incompetent and cannot be relied on by the court to determine an appeal. See AKERE vs. GOVERNOR OF OYO STATE (2012) ALL FWLR (Pt. 634) 53, ONYIA vs. ONYIA (2012) ALL FWLR (Pt. 616) 573. per. RAPHAEL CHIKWE AGBO, J.C.A.
COURT: POWER OF THE COURT; WHETHER THE COURT IS EMPOWERED TO RAISE AN ISSUE SUO MOTU
In justifying the order made by the trial court, the respondent called to his aid Order 9 Rule 14(2) of the Federal High Court (Civil Procedure) Rule 2009 which provision reads thus: – “A judge may at any stage of the proceedings either upon or without the application of either party and on such terms as may appear to the judge to be just, order that the names of any parties improperly joined be struck out.” That provision never empowered the judge to strike out any party without reference to the other parties. It only empowered the judge to raise the issue suo motu.
Ejewunmi JSC clearly set this out in IBORI vs. AGBI (2004) 6 NWLR (Pt. 868) 78 at 132 where he said: – “A court cannot be deterred from referring to the provisions of the law as it deems fit. But an ancillary to that right it is also absolutely necessary for that point to be brought to the attention of the parties and their counsel so that the court may receive their addresses on the point of law so raised clearly suo motu by the court” See also OGIAMEN vs. OGIAMEN (1967) 1 ALL NLR 191, HAMBE vs. HUEZE (2001) 4 NWLR (Pt. 203) 372.The principles of natural justice reflected in S.36(1) of the 1999 Constitution are encased in two maxims (a) no man shall be a judge in his own case and (b) the two sides in a dispute must be heard. See AZU vs. U.B.N PLC(2004) 14 NWLR (Pt. 843) 402;LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE vs. FAWEHINMI (1985) 2 NWLR (Pt. 7) 300. In IDAKWO vs. EJIGA (2002) 13 NWLR (Pt. 783) 156 the Supreme Court held that the question of the fairness of a proceeding is extrinsic to the question of the merit of the trial court’s decision. per. RAPHAEL CHIKWE AGBO, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
FREDERICK O. OHO Justice of The Court of Appeal of Nigeria
Between
CHIEF REMIGIUS CHIDI ARIOLE Appellant(s)
AND
SERGEANT PAUL NWACHUKWU & ORS Respondent(s)
RAPHAEL CHIKWE AGBO, J.C.A.(Delivering the Leading Judgment): The appellant is the plaintiff at the Federal High Court in Suit No.FHC/UM/CS/88/2003. He had in June 2003 taken out a writ of summons
against five defendants namely Sgt. Paul Nwachukwu, Commissioner of Police Imo State, Inspector General of Police, Police Service Commission, and Nigerian Police Council. In the writ of summons he prayed the Federal High Court as follows:
“1. A Declaration that it is unlawful for the Defendants to detain the Plaintiff’s tipper when no offence was committed with same.
2. The sum of N12,480,000.00 (Twelve Million Four Hundred and Eighty Thousand Naira) being special general damages for conversion.
3. The sum of N40,000.00 (Forty Thousand Naira) being loss of income on the tipper from the 10th day of June 2003 until the date of judgment in this case.
4. An order of perpetual injunction restraining the Defendants, their servants, agents or anybody acting on their instruction from detaining any other tipper or property belonging to the Plaintiff when same was not used to commit any offence.”
By a notice of withdrawal dated 6th April 2004 but filed on 19th April 2004 the appellant withdrew against the 5th defendant, the Nigerian Police Council. The matter suffered several adjournments due mainly to the series of transfer of the judges in the Umuahia Division of the Federal High Court. Finally on 27th October, 2008 the plaintiff put his first witness PW1 in the witness box. Plaintiff’s counsel wanted the witness to testify in Igbo. This was resisted by the trial judge on the ground that the witness had made his written deposition in English. Plaintiff’s counsel then applied for an adjournment to regularize his processes to enable the witnesses testify in Igbo. The trial judge relied thus:
“Learned counsel for the 1st and 2nd Defendants is not opposed to the application.
And to avoid further delays in the speedy disposal of these proceedings I hereby strike out the names of the Inspector General of Police and Police Service Commissioner who are the 3rd and 4th Defendant in this suit as they do not seem to be necessary parties in these in these proceedings judging from the history of the case as well as the entire circumstances thereof.
The law is well settled that you do not need to be the party on record in any judicial proceedings in order to be bound by the decision of the Court at the end of the day.
With the agreement of Learned Counsel, this suit is adjourned until February, 2nd, 3rd and 4th, 2009 for continuation of hearing.
Signed
Judge
27th October, 2008
With the leave of this court granted on 17-1-2011 the Plaintiff filed his notice of appeal on 31-1-2011. The two grounds of appeal are set out hereunder:
GROUNDS OF APPEAL
GROUND ONE
ERROR IN LAW
The Trial Court erred in law and denied the plaintiff of a fair hearing by raising suo moto the issue of the 3rd and 4th Defendants not being necessary parties to the suit and struck out their names without affording the Plaintiff an opportunity to be heard on it.
GROUND TWO
ERROR IN LAW
The Trial Court erred in law when it granted a relief which was not sought for by the parties.
In the appellant’s brief of argument he distilled two issues for determination to wit:
The Appellant hereby formulated the following issues for determination:
1. Whether the Lower Court was justified in striking out the names of the 3rd and 4th Respondents as parties to the case.
2. Whether the Appellant was given a fair hearing by the Lower Court.
The respondent also distilled two issues for determination to wit:
The principal issues for determination are:
A. Whether or not the trial lower court has power to strike out the two defendants without hearing from the counsel.
B. Whether the striking out of the parties will affect the Plaintiff/Appellant adversely, in the substantial suit.
The appellant in his reply brief attacked the respondent’s issue no 2 on the ground that it is not founded on any of the two grounds of appeal. The appellant is right.
Issues for determination must be raised from the grounds of appeal. An issue not distilled from a ground or grounds of appeal is incompetent and cannot be relied on by the court to determine an appeal. See AKERE vs. GOVERNOR OF OYO STATE (2012) ALL FWLR (Pt. 634) 53, ONYIA vs. ONYIA (2012) ALL FWLR (Pt. 616) 573. Respondent’s issue two is clearly incompetent, not having been distilled from any of the grounds of appeal set out above. I shall therefore determine this appeal on appellant’s issues 1 and 2 argued together.
The trial judge raised the issue of whether the 3rd and 4th defendants were necessary parties on 27th October 2008 suo motu.Without any reference to the parties or their counsel he concluded that they were not necessary parties and struck them out. This is the gravamen of this appeal. Appellant’s counsel has argued that the appellant’s right to fair hearing is enshrined in S.36(1) of the Constitution of the Federal Republic of Nigeria 1999. This provision enshrines in stone, the common law maxim audi alteram patem- let the other party be heard. In coming to the conclusion, the trial judge did not find that he had no jurisdiction or that the writ of summons is incompetent and had no activated his jurisdiction. In such a situation the trial court would have been right in refusing to proceed against the said defendants as any such proceeding would have been a nullity.
In justifying the order made by the trial court, the respondent called to his aid Order 9 Rule 14(2) of the Federal High Court (Civil Procedure) Rule 2009 which provision reads thus: – “A judge may at any stage of the proceedings either upon or without the application of either party and on such terms as may appear to the judge to be just, order that the names of any parties improperly joined be struck out.” That provision never empowered the judge to strike out any party without reference to the other parties. It only empowered the judge to raise the issue suo motu.
Ejewunmi JSC clearly set this out in IBORI vs. AGBI (2004) 6 NWLR (Pt. 868) 78 at 132 where he said: – “A court cannot be deterred from referring to the provisions of the law as it deems fit. But an ancillary to that right it is also absolutely necessary for that point to be brought to the attention of the parties and their counsel so that the court may receive their addresses on the point of law so raised clearly suo motu by the court” See also OGIAMEN vs. OGIAMEN (1967) 1 ALL NLR 191, HAMBE vs. HUEZE (2001) 4 NWLR (Pt. 203) 372.The principles of natural justice reflected in S.36(1) of the 1999 Constitution are encased in two maxims (a) no man shall be a judge in his own case and (b) the two sides in a dispute must be heard. See AZU vs. U.B.N PLC(2004) 14 NWLR (Pt. 843) 402;LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE vs. FAWEHINMI (1985) 2 NWLR (Pt. 7) 300. In IDAKWO vs. EJIGA (2002) 13 NWLR (Pt. 783) 156 the Supreme Court held that the question of the fairness of a proceeding is extrinsic to the question of the merit of the trial court’s decision.
The appellate court shall set aside such a decision in order to re-affirm the paramountcy of the fundamental principle.
The decision by the trial court to strike out the 3rd and 4th defendants without first hearing from the appellant was in clear breach of S. 36(1) of the Constitution of the Federal Republic of Nigeria 1999 and it is hereby set aside.
This appeal succeeds. There shall be no order as to costs.
PETER OLABISI IGE, J.C.A.: I have the privilege of reading in advance the judgment of my Noble Lord, AGBO JCA (PJ). I agree with the reasoning and conclusion therein.
FREDERICK O. OHO, J.C.A.: I agree
Appearances
A. I. NwachukwuFor Appellant
AND
E. E. Ibe DDPP Imo State for 1st and 2nd Respondents.For Respondent
