CHORI v. MAUDE (2022)

CHORI v. MAUDE

(2022)LCN/16274(CA)

In the Court of Appeal

(KADUNA JUDICIAL DIVISION)

On Friday, July 01, 2022

CA/K/238/2016

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Between

BAKO N. CHORI APPELANT(S)

And

DAVID MAUDE RESPONDENT(S)

RATIO:

A FUNDAMENTAL BREACH OF THE CONSTITUTIONAL RIGHT OF A PARTY

Second, it is indeed a fundamental breach of the Constitutional right of the Appellant for the learned trial Judge to have heard the application dated 10-11-2015 ex-parte. The learned trial Judge erred in hearing the application the second time and also erred in hearing it ex-parte and granting it.
Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended reads:
“36(1) In the determination of his civil rights and obligation, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or either tribunal established by law and constituted in such manner as to secure his independence and impartiality.”
Clearly, and by virtue of the above provision, the decision of a Court on a motion ex-parte when in fact an affected person ought to be served with notice of such motion cannot be valid in any circumstance.
By the order of 17-11-2015, based on an ex-parte application, the learned trial Judge has breached all fundamental principles of law and the Constitution not only by sitting on appeal on his own decision and overturning same but also by granting the application dated 10-11-2015 on 17-11-2015 on a motion ex-parte. MOJEED ADEKUNLE OWOADE, J.C.A.

THE OPPORTUNITY TO BE HEARD IN A JUDICIAL INQUIRY

The first principle Audi Alterem Patem as enunciated in the case of Federal Polytechnic Ede & Ors. vs. Alhaji Lukman Ademola Oyebanji (2012) LPELR (1996) CA by the Court of Appeal goes thus:
“In order to be fair, therefore “hearing” “opportunity to be heard” in a judicial inquiry, must encompass a party’s right:
(a) To be present all through the proceedings to hear all the evidence against him or her.
(b) To cross-examine or otherwise confront or contradict all the witnesses that testified against him.
(c) To have read before him, all the documents tendered in evidence at the hearing.
(d) To have disclosed to him the nature of all relevant material evidence, including documentary evidence, prejudicial to him.
(e) To know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence.
(f) To give evidence by himself, call witnesses, if he likes and make oral submission either personally or through counsel of his choice. See Nwanegbo vs. Oluwole (2001) 37 WRN 101; Dawodu vs. N.P.C. (2000) WRN 116; Durwode vs. The State (2001) 7 WRN 50 Per Nweze JCA.” MOJEED ADEKUNLE OWOADE, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Kaduna State High Court sitting in Kaduna presided over by Hon. Justice Tanimu Zailani in Suit No. KDH/KAD/801/012 – David Maude v. Bako N. Chori delivered on 9-2-2016.

The Appellant was the defendant in the trial Court wherein consent judgment was entered in favour of the Respondent who was the Plaintiff for the sum of N5,390,000 only on the 24th day of November, 2012.

On the 14th of May, 2013, the Court via a motion on notice, ordered for payment of the judgment sum into the account of the joined party i.e. Unity Bank who lend the money to the judgment creditor – Respondent.

Sometimes on the 29th day of June, 2015, the Respondent filed a motion dated 29/6/2015 praying the Court to set aside the order of 14/5/2013 and asking for leave to execute the judgment of 24-11-2012. The motion was moved on the 28th day of July 2015 and the ruling which dismissed the Respondent’s application was delivered on 4th August 2015. The said ruling is reproduced below:
“RULING
This case was filed in 2012 and judgment entered on the 20th day of November, 2012. On the 13th day of March, 2013, the Court via a motion on notice, ordered for payment of the judgment sum into the account of the joined party who loaned the money to the judgment Debtor. Since then, nothing was done in respect of this case and no interest shown whatsoever until the 29th day of June, 2015 when the instant motion was filed asking for orders, inter-alia, to execute the judgment of given in 2012. No one complained of the fact that the judgment sum had not been paid as ordered by the Court as per the application of the parties. This shows how seriously the parties are in the pursuit of their claims. It is so unfortunate. The Court cannot bear the cost of the “seriousness” (or “unseriousness”). It is not reasonable for the case to spend over three years before a party asks for the execution of the judgment obtained in his favour.
It is also noted that the Applicant herein claims that the order of this Court, upon application on notice of the parties was obtained by fraud. The parties were aware of the application and order. They were on notice and they appeared for the hearing of the application. They filed processes but failed to raise the issue of fraud. And where they decide to raise that issue, as in the instant motion, they must substantiate their claim. Unfortunately, there is no evidence to prove fraud. The applicant herein has simply slept on his right and cannot come back to claim same.
On the whole, I find no substance in this motion dated 29/06/2015. It is accordingly dismissed.
Signed
Judge
04/08/15.”

On 10-11-2015, the Respondent filed another motion of the same prayers with that of 29-6-2015 but now ex-parte. The said ex-parte motion contained on pages 95 – 101 of the records prayed the Court as follows:
“1. AN ORDER of this honourable Court extending time within which to apply to set aside the order of the honourable Court given on the 14th day of May, 2013.
2. AN ORDER of this honourable Court setting aside the order of the honourable Court given on the 14th day of May, 2013.
3. AN ORDER of the honourable Court permitting the judgment creditor to execute the judgment of the Court given on the 24/11/2012.
4. AND for such further order or orders as this Honourable Court may deem fit to make in this circumstances.”

The learned trial judge heard the motion ex-parte dated 10/11/2015 and granted the prayers therein which were earlier dismissed on 4th August 2015. On 9-2-2016, the Appellant’s application to set aside the order made ex-parte was refused and dismissed. The ruling of the Court which refused and dismissed the order made ex-parte is reproduced below:
“Court: This judgment was given in 2012. Thereafter, the Judgment Debtor applied for the judgment debt to be paid in an account by him. That was granted. It is now 2016, he has not paid a kobo into that account. Thus depriving the Judgment Creditor the fruit of his judgment, a position the law will not allow. Consequent upon that, I find this application grossly unjust and a calculated attempt to frustrate the judgment and orders of this Court. The motion therefore lacks merit and it is accordingly dismissed. The Judgment of this Court shall be executed henceforth.
Signed
Judge
9/2/16.”

Dissatisfied with the ruling of 9-2-2016 which refused the Appellant’s application to set aside the ruling of 4th August, 2015 based on the Respondent’s ex-parte motion, the Appellant filed a Notice of Appeal containing two (2) grounds of appeal in this Court on 10-02-2016.

The grounds of appeal together with their particulars are reproduced below:
“GROUND ONE
1. The learned trial judge erred in law in hearing the respondent’s application dated 10th November, 2015 ex-parte.
PARTICULARS OF ERROR
(a) The same application dated 29/6/2015 filed on the 10/7/2015 was earlier heard on the 28th day of July, 2015 and dismissed on merit.
(b) Upon the dismissal, the respondent filed same motion ex-parte and was granted when the Court has become functus-officio.
(c) The appellant was entitled to be heard as the application affects the appellant’s interest.
(d) The hearing of the application ex-parte denied the appellant his right to fair hearing as guaranteed by Section 36(1) of the Constitution of the Federal Republic of Nigeria.
GROUND TWO
2. The lead trial judge erred in law in refusing to set aside the ex-parte proceedings of 17th November, 2015.
PARTICULAR OF ERROR
(a) The fact that appellant was not on notice against the 17/11/2015 was sufficient ground to set aside the proceedings.
(b) The motion dated 10.11.2015 ought to be on notice failure to put the appellant on notice was a sufficient ground to set aside the order made thereon.”

Learned counsel for the Appellant filed a brief of Argument on 25/05/2016. The Respondents were served with the Appellant’s brief of Argument and hearing notices but did not file any brief in response and did not show up at the hearing.

Learned counsel for the Appellant nominated two (2) issues for the determination of the appeal. They are:
“(i) Whether the learned trial judge was not functus officio in hearing the later application dated 10/11/2015 after dismissing same application on the 4th day of August, 2015 (from ground one).
(ii) Whether the hearing of the application ex-parte was not in breach of the appellant’s fundamental right to fair hearin (from ground 2).”

Learned counsel for the Appellant argued his two issues together in one piece.

He submitted that the learned trial judge after hearing the Respondent’s application dated 29-6-2015 (Pages 78 – 87 of the records) and dismissing same on the 4th day of August (pages 129 – 130 of records) has become functus officio in hearing same application again.

That having heard the application and dismissed same, the only option opened to the Respondent is appeal against the dismissal.
He referred to the case of Lawani v. Yakubu Dawodu (1972) 8 – 9 SC 83, to say that a judge cannot overrule itself in the same proceedings.

The effect of the application of 10-11-2015 was to make the trial judge to preside on appeal over its proceedings and overruled himself without genuine reasons.
He submitted that the learned trial judge has presided on appeal over its earlier ruling of 4-08-2015 when it has become functus officio.

He submitted that a judge after making an order or giving a judgment becomes functus officio and has no power to review such order or judgment except in cases of corrections or mistakes and accidental slip.

After referring on this to the case of N.I.C.O.N vs. P.I.E.C.O. Ltd (1990) 1 NWLR (Pt. 129) 701, he noted that the Respondent’s case does not fall within corrections, mistakes or accidental ‘slip’ but has the effect of presiding on appeal over an application that has earlier been dismissed. The Respondent, said counsel, ought not to repeat the same application before the same Judge as he has become functus officio.

On issue 2, learned counsel for the Appellant referred to the provision of Section 36(1) of the 1999 Constitution as amended and submitted that the failure or refusal to put the Appellant on Notice against the 17-11-2015 for the motion dated 10-11-2015 was in flagrant violation of the Appellant’s right to fair hearing.

That the motion dated 10/11/2015 and filed on 16-11-2015 at page 95 – 101 of the records was filed ex parte and heard ex parte without serving the Appellant who obtained the order sought to be set aside.

He argued that there is no doubt the interest of the Appellant will be affected by the subsequent order of the Court to vacate the order obtained by the Appellant. The failure to put the Appellant on notice to give the Appellant hearing violate the spirit of Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). He reasoned that the said application is not the type that could be heard ex parte without putting the other party on notice.

He referred on this to the provision of Order 15(3) of the High Court (Civil Procedure) Rules 2007 (Kaduna State) which provides thus:
15(3)(1) “Except where an application ex-parte is required or permitted under any law or Rules, every motion shall be on notice to the other party.”

The rules said counsel did not allow this type of application to be heard ex-parte. The right to fair hearing is a fundamental constitutional right guaranteed by the Constitution of the Federal Republic of Nigeria 1999 and a breach of it particularly in trials, vitiates such proceedings rendering same null and void. A hearing cannot be said to be fair if any of the parties is refused a hearing or denied the opportunity to be heard, present his case or call witnesses. He referred to the cases ofSamba Petroleum Ltd & Anor. vs. United Bank for Africa (U.B.A) & 2 Ors. (2010) 43 NSCQR 119 at 137, Military Governor Imo State vs. Nwauwa (1997) 2 NWLR (Pt. 490) 675 and Kotoye vs. CBN (1989) 1 NWLR (Pt. 98) 419.

He submitted further that the rule against fair hearing is on two pillars i.e Audi Alterem Patem and Nemo Judex in causa sua. The first principle Audi Alterem Patem as enunciated in the case of Federal Polytechnic Ede & Ors. vs. Alhaji Lukman Ademola Oyebanji (2012) LPELR (1996) CA by the Court of Appeal goes thus:
“In order to be fair, therefore “hearing” “opportunity to be heard” in a judicial inquiry, must encompass a party’s right:
(a) To be present all through the proceedings to hear all the evidence against him or her.
(b) To cross-examine or otherwise confront or contradict all the witnesses that testified against him.
(c) To have read before him, all the documents tendered in evidence at the hearing.
(d) To have disclosed to him the nature of all relevant material evidence, including documentary evidence, prejudicial to him.
(e) To know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence.
(f) To give evidence by himself, call witnesses, if he likes and make oral submission either personally or through counsel of his choice. See Nwanegbo vs. Oluwole (2001) 37 WRN 101; Dawodu vs. N.P.C. (2000) WRN 116; Durwode vs. The State (2001) 7 WRN 50 Per Nweze JCA.”

He submitted that the Appellant who was not on notice of the motion dated 10/11/2015 and heard on the 17/11/2015 could not have been given any of the above listed opportunities. The Appellant was neither served nor heard in respect of the said motion. He urged us to allow the appeal on this ground and set aside the order of the trial Court made on the 17/11/2015.

He continued that the second pillar of the rule against fair hearing is; “Nemo Judex Incausa sua” i.e no one should be a judge in his own course. It is the principle that guide against impartiality, bias and their likelihood. He submitted that the fact that an earlier motion of the same prayers was dismissed by the trial Judge and thereby become functus officio to hear the same motion but assumed jurisdiction of hearing the second motion ex-parte is a clear indication of bias. The trial Judge exhibited clear evidence of bias against the Appellant who has denied the opportunity of hearing. The ordinary citizen will ask the question, what is the judge’s interest in this matter?

Having heard a similar application on merit, why hearing the same application ex-parte and granting same having refused it earlier and dismissed same.

Resolution of Issues
The two issues raised by the Appellant in his brief of argument are interwoven and jurisdictional. The trial Judge having heard a similar application on the 28th day of July 2015 and dismissed it on the 4th August, 2015 becomes functus officio in hearing a similar application dated 10-11-2015 and granting same on the 17th day of November 2015 ex-parte.
The learned trial Judge erred in hearing the application the second time, and as it were, sommersaulted in his pronouncements in giving diametrically opposed rulings on the same subject matter in the same proceeding. By this, the learned trial Judge sat on appeal on his previous ruling which he lacked the necessary vires and/or jurisdiction to do. See Lawani vs. Yakubu Dawodu (1972) 8 – 9 SC 83.

In the circumstance, this appeal is meritorious and it is allowed. The proceeding and order of the learned trial Court of 17-11-2015 are hereby set aside.
Parties to the appeal are to bear their respective costs.

AMINA AUDI WAMBAI, J.C.A.: I have read the lead judgment of my learned brother, M.A. OWOADE, JCA and I cannot agree more with him that the learned trial judge erred in law by hearing the same application twice and giving two different rulings on the same subject matter. The lower Court having entertained the application the first time, had no jurisdiction to entertain a similar application a second time.

Similarly, the lower Court breached the fundamental right of the Appellant to fair hearing by having the application the second time by a motion ex-parte.
On all fronts, this appeal deserves to be and is hereby allowed by me. I abide the order setting aside the order of the lower Court made on 17/11/2015.

BITRUS GYARAZAMA SANGA, J.C.A.: I have read a draft of the judgment just delivered by my learned brother M. A. Owoade, PJCA. I agree with the decision reached by my learned brother, after thoroughly reviewing the facts and evidence adduced in support, that this appeal has merit. I also allow same and set aside the decision by the lower Court delivered on 9/2/2016.

Appearances:

T. O. ADU, ESQ. For Appellant(s)

…For Respondent(s)