ECONOMIC AND FINANCIAL CRIMES COMMISSION v. BAYO DADA (2014)

ECONOMIC AND FINANCIAL CRIMES COMMISSION v. BAYO DADA

(2014)LCN/7651(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 31st day of December, 2014

CA/L/463/2011

RATIO

APPEAL: GROUNDS OF APPEAL; THE DUTY OF PARTY IN FORMULATING PRAYERS AND GROUNDS IN PROCEEDINGS

It submitted that it is settled that parties in formulating prayers and grounds in proceedings must be specific and precise to the point that there can be no ambiguity as to what was asked for, citing Ozueh & 15 Ors v. Ezeweputa & 2 Ors (2005) 4 NWLR (Pt.915) 221; that what has been placed before this Court are grounds challenging the appeal on the basis that being a challenge against an interim/interlocutory order, leave should have been sought but there is no specific ground challenging the grounds as being incompetent because they are of mixed law and facts or plain facts.; that its very generous arguments on grounds of mixed law and fact go to no issue, and this Court is not, in the words of Esho JSC in Ebba v. Ogodo (1984) 1 SCNLR 372 “a knight errand looking for skirmishes all about the place”; that we will not adjudicate upon what is not placed before is or indeed what is not properly placed before us. per. AMINA ADAMU AUGIE, J.C.A.

APPEAL: ISSUES OF MIXED LAW AND FACT; WHETHER THE LEAVE OF THE COURT MUST FIRST BE SOUGHT FOR AND OBTAINED WHERE A PARTY INTENDS TO RAISE ISUES OF MIXED LAW AND FACT

Where a party intends to raise issues of mixed law and fact, leave of the Court must be first sought for and obtained – See Garuba V. Omokhdon (supra), where Rhodes-Vivour, JSC, further explained –
“Leave means permission. Before an appeal on ground of mixed fact and law or on facts can be entertained by this Honourable Court, the Applicant must first seek and obtain leave from the Court of Appeal or this Court Failure to obtain leave render the appeal incompetent and it will be thrown out – -“.
See also Okwuagbala & 3 Ors v. Ikueme & 2 ors (2010) 12 SC (Pt.4) 1, where the Supreme Court per Mukhtar JSC (as he then was), observed –
“It is on record that the Appellant did not seek and obtain leave to argue the grounds as required by law. The law is trite that grounds of appeal that are of facts or mixed law and fact required the leave of either the Court of Appeal or this Court before it can be argued in this Court in the absence of such leave, the Grounds are incompetent and must be struck-out–“
– It is settled that where a ground of appeal reveals a misunderstanding by the Lower Court of the law or a misapplication by it of the law to the proved or admitted facts, it would be a question of law; where it requires questioning the evaluation of facts before the application of the law, it would amount to a question of mixed law and fact – see Ononuju V. AG Anambra State (2009) 10 NWLR (Pt.1148) 182 SC and Ogbechi v. Onochie (supra). The said Ground 5 cannot be ground of fact or of mixed law and facts. Discretion is the power or right to decide or act according to one’s own Judgment; freedom of judgment or choice – see Dictionary.Com. When applied to public functionaries, which includes Judicial Officers, the word discretion is defined in Black’s Law Dictionary 6th Ed., thus –
A power or right conferred upon them by LAW of acting in certain circumstances, awarding to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. It connotes action taken in light or reason as applied to all facts and with view to rights of all parties while having regard for what is right and equitable under all circumstances and LAW”. per. AMINA ADAMU AUGIE, J.C.A.

APPEAL: GROUNDS OF APPEAL AND ISSUES FOR DETERMINATION; WHETHER GROUNDS OF APPEAL MUST ARISE FROM THE RATIO DECIDENDI OF THE DECISION APPEALED AGAINST AND WHETHER ISSUES FOR DETERMINATION MUST EMANATE FROM THE GROUNDS OF APPEAL

Clearly, the issue formulated by the Respondent fails all known tests for formulating issues from grounds of appeal, particularly by a Respondent. The said “issue” is not related to the Appellant’s Grounds of Appeal, and it is trite that grounds of appeal must arise from the ratio decidendi of the decision appealed against and issues formulated for the determination of the appeal by an appellate Court must arise from the Grounds of Appeal, which emanated from the decision appealed against – see Ibigbami & Anor V. Mil. Gov. Ekiti State (2004) 4 NWLR (Pt.863) 243.
There is no law prohibiting a Respondent from formulating his own issues for determination, but a Respondent who has not cross-appealed or filed a Respondent’s Notice is not entitled to formulate issues outside the grounds of appeal, which contain the complaints against the decision
– see Ibator v. Barakuro (2007) ALL FWLR (Pt.371) 1669, where the
Supreme Court per Mohammed, JSC (as he then was) held as follows –
“The Respondents who have not filed any cross-appeal from which grounds of appeal these further issues could have arisen, nor filed a Respondent’s Notice to affirm the Judgment of the Court below on grounds other than grounds argued by the Appellants, have not got an unbridled right or freedom of raising issues or further issues for determination which have no relevance to the grounds of appeal filed by the Appellants”. It is also settled that any issue formulated by the Respondent outside the grounds of appeal raised is incompetent, and is liable to be struck out – see Ojegbe v. Omatsone (1999) 6 NWLR (Pt.608) 591 SC. per. AMINA ADAMU AUGIE, J.C.A.

COURT: ORDER OF COURT; WHETHER ORDERS OF COURT MUST BE OBEYED

I am not advocating that the Appellant is right to disobey the Order; it is settled that Orders of Court must be obeyed, even if it is perverse – see Oba Aladegbami V. Oba Fasanmade (1988) 3 NWLR (Pt.81) 131; (1988) 1 NSCC (Vol.19) 1087, where Eso, JSC, categorically stated –
“Lord Denning never said as is often claimed that a Judgment of a Court of competent jurisdiction could be ignored, if it is found for any reason to be void, without its being first set aside. He never said so and in my humble view, if he had, it is with utmost respect, not the law, for a Court of incompetent jurisdiction not necessarily of unlimited jurisdiction has jurisdiction to decide a matter rightly or wrongly. If that Court ever had jurisdiction in the matter then its decision is, without jurisdiction, void, but then should a Court of law not even decide the pint? That is, the Court without jurisdiction decided without jurisdiction? Should the decision just be ignored? Surely, it would not make for peace and finality, which a decision of a Court seeks to attain. It would at least be against public policy for persons, without the backing of the Court, to pronounce a Court decision a nullity, act in breach of the decision whereas others may set out to obey it. – – It is not only desirable but necessary to have such decisions set aside first by another Court before any act is built upon it despite the colorful dictum of Lord Denning in UAC v. Macfoy – -“. per. AMINA ADAMU AUGIE, J.C.A.

CONSTITUTIONAL LAW: FUNDAMENTAL RIGHT OF FAIR HEARING; WHAT FAIR HEARING INVOLVES AND THE BASIC CRITERIA OF FAIR HEARING

Fair hearing involves fair trial and a fair trial of a case implies that every reasonable and fair-minded observer watching the proceedings should be able to come to the conclusion that the Court was fair to all parties – see Kotoye V. CBN (1989) 1 NWLR (Pt.98) 26, where the Supreme Court per Nnaemaku-Agu, JSC, stated –
“The rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice had been done because of lack of hearing. It is whether a party entitled to be heard before deciding had in fact been given the opportunity of a hearing. Once an Appellate Court comes to the conclusion that a party was entitled to be heard before a decision was reached but was not given the opportunity of a fair hearing, the order or Judgment thus entered must be set aside. This is because such order is against the rule of fair hearing, one of the twin pillars of natural Justice which is expressed by the maxim: audi alteram partem”.
The Supreme Court set out the basic criteria of fair hearing to include –
(a) That the Court shall hear both sides not only in the case but also on 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 to 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. per. AMINA ADAMU AUGIE, J.C.A.

Before Their Lordships

AMINA ADAMU AUGIEJustice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJIJustice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMOJustice of The Court of Appeal of Nigeria

Between

ECONOMIC AND FINANCIAL CRIMES COMMISSIONAppellant(s)

AND

BAYO DADARespondent(s)

AMINA ADAMU AUGIE, J.C.A. (Delivering The Leading Judgment): This is another Appeal against the two Rulings of the Federal High Court delivered by Archibong, J., on the same day – 18/5/2011, which relate to criminal charges involving funds belonging to Intercontinental Bank Plc. Sometime in 2009, the Respondent was arraigned as the 6th Accused in Charge No:FHC/L/CS/295C/2009 – FRN V. Raymond Obieri & Ors, and was granted bail by the Lower Court on 15/9/2009. The Charge was later amended and he was arraigned again as the 4th Accused in Charge No:FHC/L/CS/445C/2009 – FRN V. Akin Solomon Fabunmi & Ors. He was again admitted to bail on 15/1/2010, and one of the conditions for bail is –

“That the Accused Persons shall report to the Officers investigating this case at the offices of EFCC on the first working day of every week pending the conclusion of their trial”.

On 3/5/2011, he complied with same, and reported at the EFCC’s Office, and was arrested and detained by the Appellant on the allegation that he stole funds belonging to the said bank whilst he was director of the bank. When efforts to procure his bail and/or release failed, he presented an Originating Motion for the Enforcement of his Fundamental Human Right at the Federal High Court, wherein he sought the following reliefs –

a. A Declaration that the arrest, detention, harassment and incarceration of the [Respondent] is a violation of [his] Fundamental Right to dignity of human person, personal liberty and freedom of movement guaranteed by S.34, 35 and 41 of the 1999 Constitution and Articles 5, 6 and 12 of the African Charter on Human and People’s Rights (Ratification and Enforcement Act) (Cap A9) – –
b. A Declaration that the continued detention, constant harassment, humiliation and maltreatment of the [Respondent] by the [Appellant] – – is wrongful, illegal and unconstitutional as it is a violation of the [Respondent]’s fundamental right as guaranteed by the 1999 Constitution and Articles 5, 6 and 12 of the African Charter on Human and People’s Rights (Ratification and Enforcement Act) – –
c. A Declaration that the act of the [Appellant] – – is unlawful, illegal, wrongful and unconstitutional as it violates [his] fundamental rights to dignity of human person, personal liberty and freedom of movement guaranteed by Section 34, 35 and 41 of the Constitution – – and Articles 5, 6 and 12 of the African Charter on human and People’s Rights (Ratification and Enforcement Act) – – –
d. An Order directing the [Appellant] to release the [Respondent] from its custody with immediate effect.
e. An Order of perpetual injunction restraining the [Appellant] whether by themselves or by their agents, servants, officers, privies or otherwise however from further arresting and/or detaining the [Respondent] in any other manner violating [his] fundamental right to dignity of human person, personal liberty and freedom of movements as guaranteed by Section 34, 35 and 41 of the Constitution of the Federal Republic of Nigeria, 1999 and Articles 5, 6 and 12 of the African Charter on Human and People’s rights – –

In addition to the above Originating Motion dated 5/5/2011, he also filed a Motion Ex-parte dated the same day – 5/5/2011, wherein he prayed for-

1. AN INTERIM ORDER of this Honourable Court directing the [Appellant], its servant, agents and/or privies to release the [Respondent] from detention forthwith pending the hearing and determination of the Originating Motion filed for the enforcement of his fundamental rights.
IN THE ALTERNATIVE TO PRAYER ABOVE
2. AN INTERIM ORDER – – admitting the [Respondent] to bail pending the conclusion of the investigation of any crime allegedly committed by him by the [Appellant] or any other law enforcement agency.
3. AN ORDER OF INTERIM Injunction restraining the [Appellant], its servant, agents and/or privies from further arresting or detaining the [Respondent] in connection with any matter relating to the complaint for which [he] was arrested and detained pending the hearing and determination of the Motion on Notice filed for the enforcement of his fundamental right or as this Honourable Court may otherwise Order.

The Lower Court heard and granted the Ex-parte Application on 6/5/2011, and the Order of the Lower Court at p. 108 of the Record, is as follows –

“It is ordered that the [Appellant], its servants, agents, and/or privies are hereby directed to release the [Respondent] from detention forthwith, pending hearing and determination of the Originating Motion filed for the enforcement of his fundamental rights. The Return Date is fixed for 18/5/2011”.

Dissatisfied with the Interim Order, the Appellant filed a Notice of Appeal dated 13/5/2011 and followed it up with an Application dated same day for stay of further proceedings pending the determination of the appeal.
The Grounds of the said Application for stay are as follows –
(i) Special and exceptional circumstances exist for the grant of this Application;
(ii) There is a pending appeal before he Court of Appeal;
(iii) The thrust of the Appeal is that the jurisdiction of this Court to hear this matter has been challenged;
(iv) The Grounds of the Appeal raise substantial issues as to the Court’s jurisdiction.

It also filed a Notice of Preliminary Objection dated 16/5/2011 to the Application for the enforcement of their Fundament Rights filed by both Dr. Erastus Akingbola and the Respondent that was ‘brought pursuant to Order VIII Rule 1, 2, 4 and 5 of the Fundamental Rights Enforcement Procedure Rules 2009″, and the Grounds of its Objection are as follows –

1. Section 40 of the EFCC Act 2004 proscribes the making, entertaining or granting of this kind of Application.
2. The Federal High Court does not have the jurisdiction or power to injunct the exercise of judicial authority by the High Court of Lagos State.
3. The Federal High Court Order referred to proceedings before the Federal High Court only and no more.
4. No Court has the jurisdiction to grant an injunction restraining the performance of statutory duties/powers of arrest and prosecution.
5. The Court is bound on the basis of stare decisis to follow decisions of the superior Courts of the afore-mentioned.
6. The Applicants’ Fundamental Rights are not absolute and can be curtailed under the provisions of the 1999 Constitution.

The matter came up on 18/5/2011, and the record of proceedings read –
“Chief F. O. Fagbohungbe (SAN) for the Applicant with him A. Shamsudeen, Esq., Yomi Adeniran, Esq., and Erant Onwuhe, Esq. (sic)
J. B. Dauda (SAN) for the Respondent with him Dr. K. Ajayi (SAN) – Godwin Obla, Esq., E. C. Okpe, Esq., Victor Ejie, Esq., and Eze Ogechukwu Esq.
Fagbohungbe SAN: The Respondents in this matter filed their processes yesterday, and we were also served yesterday at about 4.00p.m we are entitled to reply to their Application and the time within which we are to reply has just commenced, and we have to work within that time.
Court: Where is the Applicant?
Fagbohungbe SAN: The Applicant has not been brought by the Respondent. The Order of this Court that the Applicant be released forthwith has not been complied with.
Court: That we hear from the Respondent.
Daudu SAN (sic): There is an Application for stay of proceedings which is not yet ripe for hearing.
Court: I think the Application notice is ripe
Daudu SAN: They also served on us a process, a Counter – Affidavit to the Motion for Stay. There are substantive issues to be addressed.
Court: The Motion for stay of proceedings is misconceived and hereby dismissed. Move your substantive application.
Senior Counsel for prosecution take their leave-
Court: I may add that the EFCC and the leading Senior Advocates are in contempt in Court (sic).
Fagbohungbe SAN: We have an Application dated 5/5/2011 and filed same day. We have an affidavit in support of 15 paragraphs Declarations is the arrest detention, harassment and incarceration of the Applicant is a violation of the applicants Fundamental Right to dignity of human person, pursue (sic) liberty and freedom of movement guaranteed by Sections 34, 35 and 41 and we seek the reliefs listed on the Motion paper. We rely on the Affidavit in support and adopt our written address.
Court: They filed a Counter-Affidavit yesterday, which they would have now argued but they say they are taking their leave. The underlying issue of course would be why an interim Order was disobeyed.
Fagbohungbe SAN: I move in terms of our Application.
Court: Orders/Declarations as prayed”.

Also dissatisfied with this Ruling, the Appellant filed another Notice of Appeal dated 19/5/2011, which contained only three Grounds of Appeal, however, the Notice of Appeal was amended with the leave of this Court, and the Amended Notice of Appeal contains five Grounds of Appeal.

The Appellant specifically stated in its Brief of Argument settled by J. B. Daudu (SAN), Emmanuel Ukala (SAN), Dr. Koyinsola Ajayi (SAN), Chief Godwin Obla, Esq., and Oluwadamilola Babalola, Esq. that it had distilled 2 issues for Determination from Grounds 4 & 5 of the Amended Notice of Appeal, and it was thereby abandoning the other Grounds 1-3.

The Respondent objected to the “Appellant’s Appeal as presented in its Amended Notice of Appeal dated 16/1/2012” and filed a Notice of Preliminary Objection to that effect in its his own Brief of Argument.

The Grounds of Objection are as follows –

a) The leave of Court is statutorily required where an appeal as presented in a Notice of Appeal that questions the interlocutory/interim order of a Court of law.
b) The Appellant has appealed against the interim order of the Trial Court delivered on 6/5/2011. Fatally, the Appellant failed, refused or neglected to seek and obtain the leave of the Trial Court or this Hon. Court before appealing against the interim order of the trial Court made on the 6/2/2012.
c) Failure of the Appellant to seek and obtain the leave of the Trial Court or this Hon. Court renders the extant appeal incompetent.

As a preliminary point of law, he formulated an issue for Determination in his Brief of Argument prepared by Chief F. O. Fagohungbe (SAN), Rickey Tada (SAN), Deji Sasegbon (SAN) and Dapo Oduwole, Esq. i.e.

“The Appellant’s Amended Notice of Appeal dated 16/1/2012 raises grounds of facts or mixed law and facts. However the Appellant failed to obtain the leave of this Hon. Court as required by Section 242 (1) 1999 Constitution (as amended). Is the Appellant’s Notice of Appeal dated 16/1/2012 competent in the circumstance”?

He submitted that leave of Court must be obtained before an appeal can be instituted on ground of fact or mixed law and fact, and failure to satisfy this constitutional requirement is that it is incompetent, citing Maigoro V. Garba (1999) 10 NWLR (Pt.624) 555; that the Grounds are premised on the disclosure/sufficiency of evidentiary burden, and ultimately constitute a challenge to the manner in which the Court exercised its discretion, which it is regardless of the language conveying or transmitting it, citing Coker B. UBA Plc. (1997) 2 NWLR (Pt.490) 641; that regardless of how the Grounds are characterized or conceived, the question is whether the appeal raises questions of law and facts or whether facts have a role in the consideration of the Lower Court, which facts this Court will have to understand to put the Lower Court’s discretion in con; and that –

“Put differently, the determination by this – Court on whether the judicial discretion of the Trial Court was properly exercised irresistibly leads to the consideration of the Affidavit by which the Applicant furnished facts necessitating the grant of the interim order for the release of the Applicant pending the determination of the substantive suit. The appellate Court will be required to evaluate the Affidavit of Adebisi Oyelade dated 5/3/2011 (supporting the Applicant’s Ex parte Motion by which the trial Court made its interim order). Clearly, the basis of the Appellant’s appeal is a challenge to the exercise of judicial discretion of this Court and leave of Court is required to institute an appeal on this grounds”.

At this point, he reproduced the Grounds of Appeal being challenged –

GROUND FOUR
ERROR IN LAW
The Learned Trial Judge Hon. Archibong J. erred in law when on 18/5/2011 he refused the Appellants Application for a stay of further proceedings pending appeal against the Court’s earlier Order for the interim release of the Applicant without hearing the said Application on the merit and by so doing denied the Appellant of any hearing or opportunity to be heard on the said application.

PARTICULARS OF ERROR
(a) The peremptory dismissal of the Appellants Application for stay of proceedings without hearing any of the parties was not a proper exercise of the Court’s judicial power.
(b) Failure or refusal by the trial Court to allow the Appellant move the said Application before dismissing same amounts to a denial of hearing.
(c) The failure to afford the Appellant any hearing on the said Application rendered the entire proceedings subsequent thereto null and void.
(d) Consequently, the entire proceedings ought to be aside.

GROUND FIVE
ERROR IN LAW
The learned trial Judge, Hon. Archibong J. erred further in law when after dismissing the Application for stay of proceedings proceeded to grant the Respondent’s substantive application for the enforcement of fundamental rights in a Ruling or decision that did not contain any reasons or basis for the decision.

PARTICULARS OF ERROR
(a) The absence of reasons for the Judgment granting all the reliefs in the Application for the enforcement of Fundamental Rights rendered the whole Judgment invalid and unenforceable.
(b) By failing to render reasons for coming to a conclusion, Archibong J., rendered the entire proceedings a nullity.

And argued that they show that the Appellant’s appeal is a challenge of the Court’s discretionary power, which would involve the evaluation of relevant sufficient facts, and makes the Grounds one of fact or mixed law and fact, citing UBA V. GMBH & Co. (1989) 3 NWLR (Pt.110) 374 SC. Citing Ogbechie V. Onochie (1986) 1 NWLR (Pt.23) 484, Ifediorah V. Ume (1988) 2 NWLR (Pt.74) 5, Ojemen V. Momodu (1983) 3 S.C, Nwadike V. Ibekwe (1987) 4 NWLR (Pt.67) 718 and CBN V. Okojie (2002) 8 NWLR (Pt.678) 48. He also argued that the Application for stay having been struck out, the Appellant ought to have obtained leave to appeal against the order; and its appeal is, therefore, incompetent, and rests on absolutely nothing, citing Nigeria Westminster Dredging and Marine Ltd. v. UFT Engineering Ltd. (2011) 8 NWLR (Pt.1249) 309.

The Appellant argued in its Reply Brief that his argument on the purported preliminary objection is academic and predicated on a nonexistent ground; that after setting out specific grounds of objection, which complains that it had appealed against an interim or interlocutory order without leave of Court, it went on to argue off-tangent that the grounds of appeal were either grounds of mixed law and facts, facts or an appeal against the discretion of the Lower Court, which required leave of Court.

It further argued that ordinarily this should end the sojourn of the preliminary objection but it would be in the interest of justice to show that viewed from whatever angle, the preliminary objection is misconceived. It referred to paragraph 5 of the Respondent’s brief, wherein he had said-

“On 5/5/2011, the Respondent (as Applicant before the trial Court) presented an Originating Motion for the Enforcement of his Fundamental Human Right before the Federal High Court, Lagos. The purport of the Respondent’s Originating Motion (sic) to challenge his unlawful detention, harassment humiliation and incarceration by the Appellants (as Respondent before the trial court) contrary to the provisions of Constitution of the Federal Republic of Nigeria, 1999 and the African Charter on Human and Peoples (Ratification and Enforcement) Act Cap A9 LFN 2004.” (Underlining that of the Appellant)

And paragraph 5, where he identified the action leading to the appeal –

“On 5/5/2011, the Respondent also presented a Motion Ex Parte seeking an interim order of the Federal High Court Lagos to order the Appellant to release the Respondent from custody pending the determination of the substantive suit. On 6/5/2011, the trial Court heard and granted the Respondent’s Ex Parte Application for the interim order of the court releasing the Respondent from custody pending the determination of the substantive suit”.

It submitted that where an appeal arises from proceedings rooted in the enforcement of fundamental rights, Section 241(1) (d) of the Constitution designates such appeal as one of as of right, citing UBN Plc. v. Sogunro (2006) 16 NWLR (Pt.1006) 504; that an appeal arising from a proceeding “where the liberty of a person or the custody of an infant is concerned” is by Section 241(1) (d) one as of right; that the appeal arose because it was aggrieved by the premature release of the Respondent by the Lower Court, and the question whether it is one of mixed law and fact will not arise because where an appeal arises from one of these classifications, it is irrelevant if the grounds are grounds of mixed law and facts or facts; the Grounds of appeal are deemed to be hinged on an appeal as of right.

It submitted that the said Grounds 4 and 5 are pure grounds of law; that the gist of Ground 4 is that the trial Court peremptorily dismissed the Application for stay pending the determination of a pending appeal, and its particulars allege that by refusing to hear it before dismissing same, the Court trampled on its right to be heard and fairly too; that Ground 5 complains that the trial Court granted the substantive reliefs sought in a one-line Ruling bereft of reasons as to how it arrived at that conclusion; and that the said Grounds cannot be construed as grounds of mixed law and facts or facts; that where grounds arising from any civil or criminal proceedings are grounds of law, they are appealable as of right, citing Section 241(1)(b) of the Constitution and Kasandubu v. Ultimate Pet. Ltd. (2008) 7 NWLR (Pt.1086) 274; and that all the authorities cited and relied on by the Respondent are demonstrably irrelevant and immaterial.

Yes, the Respondent’s Grounds of Objection say one thing and his arguments in support thereof say a different thing but that is not worth worrying about as it takes away nothing and adds nothing to the outcome of his Objection, which is nothing but a complete distraction, in my view. In the sister Appeal No.CA/L/462/2011- EFCC v. Dr. Erastus Akingbola, the Respondent raised a similar objection to the Grounds of Appeal filed by the same Appellant, and this is what I said in the lead Judgment –
“To determine whether a ground of appeal is a ground of law or of fact requires examining it in terms of its particulars to determine the nature of the question the ground raised is complaining about – see Garuba V. Omokhodon (2011) 6-7 SC (Pt.V) 89. The mere fact that a ground of appeal is described as one of fact or law will not stop a Court from looking into whether the Ground is actually one of law or of mixed law and fact and/or of facts – See Ejiwunmi v. Costain (W.A) Plc. (1988) 12 NWLR (Pt.576) 146, Olojoun V. Ozima (1985) 2 NWLR (Pt.6) 167. Where a party intends to raise issues of mixed law and fact, leave of the Court must be first sought for and obtained – See Garuba V. Omokhdon (supra), where Rhodes-Vivour, JSC, further explained –
“Leave means permission. Before an appeal on ground of mixed fact and law or on facts can be entertained by this Honourable Court, the Applicant must first seek and obtain leave from the Court of Appeal or this Court Failure to obtain leave render the appeal incompetent and it will be thrown out – -“.
See also Okwuagbala & 3 Ors v. Ikueme & 2 ors (2010) 12 SC (Pt.4) 1, where the Supreme Court per Mukhtar JSC (as he then was), observed –
“It is on record that the Appellant did not seek and obtain leave to argue the grounds as required by law. The law is trite that grounds of appeal that are of facts or mixed law and fact required the leave of either the Court of Appeal or this Court before it can be argued in this Court in the absence of such leave, the Grounds are incompetent and must be struck-out–”
– It is settled that where a ground of appeal reveals a misunderstanding by the Lower Court of the law or a misapplication by it of the law to the proved or admitted facts, it would be a question of law; where it requires questioning the evaluation of facts before the application of the law, it would amount to a question of mixed law and fact – see Ononuju V. AG Anambra State (2009) 10 NWLR (Pt.1148) 182 SC and Ogbechi v. Onochie (supra). The said Ground 5 cannot be ground of fact or of mixed law and facts. Discretion is the power or right to decide or act according to one’s own Judgment; freedom of judgment or choice – see Dictionary.Com. When applied to public functionaries, which includes Judicial Officers, the word discretion is defined in Black’s Law Dictionary 6th Ed., thus –
A power or right conferred upon them by LAW of acting in certain circumstances, awarding to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. It connotes action taken in light or reason as applied to all facts and with view to rights of all parties while having regard for what is right and equitable under all circumstances and LAW”.

In this case, the Respondent contends that the said Ground 5 challenges the exercise of the Lower Court’s discretion. He submitted as follows –
“The determination by this Court on whether the judicial discretion of the Trial Court was properly exercised irresistibly leads to the consideration of the Affidavit by which the Applicant furnished facts necessitating the grant of the interim order for the release of the Applicant pending the determination of the substantive suit. The appellate Court will be required to evaluate the affidavit of Adebisi Oyelade dated March 5, 2011 (supporting the Applicant’s Ex parte Motion by which the Trial Court made its interim order”.
The Respondent missed the point completely; the Appellants complaint in the said Ground 5 has nothing whatsoever to do with judicial discretion. Its gripe is that releasing him on an ex-parte Application in the face of an identical substantive relief was a misuse of the Court’s judicial power, which cannot be equated with judicial discretion. Yes, it is empowered to exercise its discretion in certain circumstances but it goes without saying that discretion cannot dictate to the law; it is the law that dictates when a Court can exercise its discretion; how it can exercise that discretion; and what it is allowed to exercise its discretion on. See UBA V. Stahibau GMBH & Co. K.G. (1989) 3 NWLR (Pt.110) 374 where Oputa, JCA (as he then was) observed as follows –
“Discretion is thus not an indulgence of a judicial whim, but the exercise of judicial judgment based on facts and guided by the law or the equitable decision”.

The said Ground 5 is purely a ground of law that questions the power of the Court to grant the Interim Order for the release of the Respondent. Moreover, the Lower Court did not refer to any Affidavit evidence in its Ruling that would require this Court to evaluate the said Affidavit by which it had made the Interim Order, as postulated by the Respondent. Finally, and more importantly, as the Appellant rightly submitted, Section 241 of the 1999 Constitution emphatically provides as follows –
An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
d. Decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be contravened in relation to any person.
f. Decisions made or given by the Federal High Court or a High Court –
(i) Where the liberty of a person or the custody of an infant is concerned”.
The Respondent is not disputing the fact, and the Lower Court made it clear in the Interim Order appealed against that the Appellant is directed to release him forthwith pending the hearing and determination of the “Originating Motion filed for the enforcement of fundamental rights”. The said Section 241 (d) & (f) of the Constitution did not limit the scope of the appeal to the person affected or who made the Application; it says that an appeal shall lie as of right from decisions on the question as to whether any of the provisions of Chapter IV of the Constitution has been, is being or is likely to be contravened in relation to any person; and where the liberty of a person is concerned. As it is, the Appellant is aggrieved by the interim order made by the Lower Court directing it to release him from detention and it is entitled by LAW to appeal as of right”.

In this case, the Respondent, who is also represented by the same set of Counsel in the sister Appeal No.CA/L/462/2011, canvassed similar arguments herein, and since there is nothing different in the two Appeals to warrant a shift in opinion on my part, I will adopt my reasoning therein, and conclude in this Appeal that there is nothing factual in Grounds 4 & 5 of the Grounds of Appeal in the said Amended Notice of Appeal; there is no taint of facts in the Grounds to make them a mixture of law and facts; and there is no question of challenge to the Court’s discretionary power. The Grounds are purely grounds of law for which no leave is required. More importantly, this Appeal against the two Rulings is predicated on the Application for the enforcement of his Fundamental Rights, and by Section 241(d) and (f) of the Constitution, an appeal shall lie as of right from decisions on questions relating to the issue of Fundamental Rights. Besides, the Appellant is also complaining that it was not heard or given an opportunity to be heard, which touches on its own right to fair hearing. Thus, there is no merit in the Respondent’s Objection, and it is overruled.

Be that as it may, the Appellant distilled 2 issues for Determination from the said Grounds 4 and 5 of its Grounds of Appeal, and they are –

1. Whether the dismissal or refusal of the Appellants Application for stay of proceedings pending appeal without hearing the parties thereon was not a breach of the former’s right to fair hearing and if answered in the affirmative, whether the proceedings were not at that stage rendered null and void?
2. Whether the failure by the learned trial Judge to provide reasons in the Judgment granting he Respondent’s substantive Application for the enforcement of his fundamental rights did not render the said Judgment invalid and unenforceable, and it answered in the affirmative whether the entire proceedings were thereby not rendered a nullity?

On his part, the Respondent formulated the following issue in his brief –

“Whilst in contempt of the Interim Order of the trial Court to release the Respondent from detention pending the determination of the substantive suit, the Appellant unrepentantly sought the exercise of the Court’s discretion in his favour. Having not purged itself from the contempt is the Appellant entitled to the indulgence of the trial Court?

Clearly, the issue formulated by the Respondent fails all known tests for formulating issues from grounds of appeal, particularly by a Respondent. The said “issue” is not related to the Appellant’s Grounds of Appeal, and it is trite that grounds of appeal must arise from the ratio decidendi of the decision appealed against and issues formulated for the determination of the appeal by an appellate Court must arise from the Grounds of Appeal, which emanated from the decision appealed against – see Ibigbami & Anor V. Mil. Gov. Ekiti State (2004) 4 NWLR (Pt.863) 243.
There is no law prohibiting a Respondent from formulating his own issues for determination, but a Respondent who has not cross-appealed or filed a Respondent’s Notice is not entitled to formulate issues outside the grounds of appeal, which contain the complaints against the decision
– see Ibator v. Barakuro (2007) ALL FWLR (Pt.371) 1669, where the
Supreme Court per Mohammed, JSC (as he then was) held as follows –
“The Respondents who have not filed any cross-appeal from which grounds of appeal these further issues could have arisen, nor filed a Respondent’s Notice to affirm the Judgment of the Court below on grounds other than grounds argued by the Appellants, have not got an unbridled right or freedom of raising issues or further issues for determination which have no relevance to the grounds of appeal filed by the Appellants”.
It is also settled that any issue formulated by the Respondent outside the grounds of appeal raised is incompetent, and is liable to be struck out – see Ojegbe v. Omatsone (1999) 6 NWLR (Pt.608) 591 SC. In this case, the Respondent did not cross-appeal or even file a Respondent’s Notice praying that the decision of the Lower Court be affirmed on grounds other than the Grounds of Appeal raised by the Appellant, and it follows that the “issue” he formulated, which is not hinged on any of the Appellant’s Grounds of Appeal is incompetent, and it is accordingly struck out.

The Appellant’s contention under issue 1 is that the hasty dismissal of its Application for stay without hearing the parties was a breach of its right to fair hearing, which rendered the entire proceedings null and void.

It referred us to the following authorities to buttress its position –

(1) Leaders Company Ltd. & Ors Vs. Major-Gen. Musa Bamaiyi (2010) 18 NWLR (Pt.1225) 329 at 345 where Rhodes-Vivour JSC, held –
“Striking out the Notice of Appeal is a clear denial of fair hearing. Audi alterem partem simply means hear the other side. It denotes basic fairness and a generally accepted standard of natural justice. In practice it means that the Judge should allow both parties to be heard and ensure he listens to the point of view or case of each side. Striking out the Appellants’ interlocutory appeal, when the appeal was properly filed before the Court of Appeal, is a denial of the Appellants’ right to fair hearing as provided by Section 36 of the Constitution. Section 22 of the Supreme Court Act confers on this Court wide power to do what the Court of Appeal ought to have done but did not do. It unfortunately cannot be invoked in this case simply because the Judgment of the Court of Appeal is a nullity. A Judgment is a nullity when it is clear that a party was denied a fair hearing”.
(2) Salu V. Egeibon (1994) 5 SCNJ 223, where Adio JSC who held thus:
“To some extent, there was, therefore, substance in the submission of the learned counsel for the respondent. However, it should be remembered that it has earlier been found in this Judgment that the Appellant was denied a fair hearing a fundamental right guaranteed by Section 33 (1) of the 1979 Constitution. It also has to be remembered that the denial of a fair hearing was a breach of one of the rule of natural justice, that is, the requirement that a party must be given a fair hearing. The consequence of a breach of the rule of natural justice of fair hearing is that the proceedings in the case are null and void. See Adigun v. A. T. of Oyo State (1987) 1 NWLR (Pt.53) 678. If a principle of natural justice is violated, it does not matter whether if the proper thing had been done the decision would have been the same; the proceedings will still be null and void. In other words, if the principles of natural justice are violated in respect of any decision, it is immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision. See Adigun’s case, (supra). In effect the proceedings in this case before the learned trial judge and his judgment thereon are null and void. In the circumstance, the proper order to make is one affirming the order of the court below for a retrial of this case before another Judge of the High Court of Ogun State”.

The Appellant submitted as follows at page 8 of its Brief of Argument –

“The approach of the trial Court appeared – too drastic and rash. The Court proceeded as if it had already made up its mind on the whole proceedings. He employed his judicial powers to sweep the Appellant away from his Court without a hearing. The question is whether the proceedings can be regarded to be an incidence of a fair trial? Would any observed impartial or otherwise regard the foregoing as being fair? We urge [this Court] to return a negative answer. The proceedings were manifestly unfair to the Appellant as it had a constitutional right to have its application determined one way or the other”.

But the Respondent’s position is that as an “unapologetic contemnor of the Order of the trial Court, the Appellant is estopped from having the discretion of the Court exercised in its favour because he who comes to equity must come with clean hands”. He further argued as follows –
“Unsurprisingly, the Appellant decided to down-play its defiance and unremorseful disposition to the interim order of the Trial Court – – for the release of the Respondent from the Appellant’s custody pending the determination of the substantive suit. In whatever form the Appellants seeks to convey the purported refusal of the Trial Court to determine its application for stay of proceedings, it is undeniably clear that the interim order of the Trial Court was a valid and subsisting order of a Court of Law. More so, it is clear that the Appellant was, at the relevant time, in blatant disregard of the interim order of the Trial Court made on 6th May, 2012. Without a doubt, the said interim order of the Trial Court was very precise, unequivocal and requires strict compliance to. The Appellant failed to comply with this Order despite the fact that the Trial Court’s Order relates to the liberty of the Respondent”.
He further submitted as follows at page 22 of his Brief of Argument-
“Undeniably, the interim order of the trial Court – – – was blatantly flouted. The Appellant contemptuous conduct was confirmed when the Trial Court gave [it] an opportunity to provide reason for non-compliance with its interim order but rather, the Appellant digressed to merely inform the trial Court of its pending stay Application. – – Then, this elicits a fundamental question. Having not purged itself from contempt of the Courts, is the Appellant entitled to the discretion of the Trial Court being exercised in its favour? The answer is No. It is elementary principle of law that “he who comes to equity must come with clean hands” and “he who seek equity must do equity’. These principles are very much applicable in the instant appeal. Basically, on 6/5/2011, the Trial Court ordered the Appellant to release [him] from detention pending the determination of the substantive suit. The interim order of the Trial Court is clear and simple. Surprisingly, the Appellant completely failed to comply with the order of the Trial Court. Unapologetically, the Appellant then presented a Motion for Stay of Proceedings dated 13/5/2011 seeking the exercise of the Court’s discretion in its favour. What a misguided self-confidence”.

The Appellant, however, submitted as follows in its Reply Brief –

“By raising the issue of existing contempt being a bar to the success of the application for stay of proceedings, the Respondent was deliberately putting the cart before the horse. There has to be a hearing before the trial Court can rule adopting the reasons so adroitly provided by the Respondent – – as being sufficient to ride roughshod over [its] right to move its application for stay of proceedings. Whether there was contempt of court or not is not an issue before [this] Court. The live issue is whether it was permissible in law for the trial Court to dismiss an Application properly before it without hearing the parties? The answer now provided by the Respondent should have been a possible basis for refusing the Application but it is speculative at this point in time to imagine how the Ruling of the trial Court on the Application for stay of proceedings would have gone, had the Court heard the parties”.

It must be tempting for the Respondent to lock horns with the Appellant on the issue of contempt of the Interim Order that he be released from its custody, and as we can see, he did not resist the temptation, however, we cannot join him in that delicious meal because, as the Appellant said, the question of whether there was contempt is not a live issue before us. The Appellant did not raise the question in any of its Grounds of Appeal, and this Court cannot adjudicate on issues that were not raised before it – see Bhojsons Plc. V. Daniel Kalio (2006) 5 NWLR (Pt. 973) 330 SC, where the Supreme Court per Oguntade, JSC, so aptly explained that –
When an appellate Court in the course of hearing an appeal forms the impression that the Court below made some errors, which ought to have been appealed against, the appellate Court must show aloofness and refuse to be drawn into a correction of errors not appealed against. This point was lucidly made by this Court in Ejowhomu V. Edok-Eter Madillas Ltd. (1956) 5 NWLR (Pt.39) at 30 – 31 where Obaseki, JSC, said –
A trial Court may have committed grave error in its Judgment in a manner, which stirs the informed mind of the appeal Court Judges for correction, but it is settled law that if the parties to the matter are satisfied with the Judgment there is nothing the Justices of the Court of Appeal can do. The Justices can only maintain studied silence or observe that there was no appeal before them on the point. If one of the parties is aggrieved and decides to appeal on grounds, which do not raise the gave errors, observed as issues to be debated and determined, the Justices are still powerless and hamstrung in tackling the errors. But if the party adversely affected by the errors, through careful reading, wisdom and vigilance spots the errors and takes the matter on appeal on grounds complaining of those errors, it is only then and then only that the Court of Appeal under our law can deal with the issue. Generally, appeal Courts without statutory provision, have no jurisdiction to disturb settled issues not properly brought as well as those not brought before them”.

In this case, the Respondent is not complaining about any aspect of the Lower Court’s Ruling; what he seems to be saying is that it had reason to dismiss the Appellant’s Application for stay since it refused to obey the Interim Order to release him and was, therefore, in contempt of Court. But the Appellant has not complained about the Lower Court’s comment that” EFCC and the leading Senior Advocates are in contempt of Court”.

The Respondent did not also file a Respondent’s Notice asking this Court to affirm the Lower Court’s decision to dismiss the Application on the ground that the Appellant and its Counsel were in contempt of Court. At any rate, this is what the Lower Court said at page 236 of the Record –

“The Motion for stay of proceedings is misconceived and hereby dismissed. Move your substantive application. Senior Counsel for Prosecution take their leave. I may add that the EFCC and the leading Senior Advocates are in contempt in Court (sic)”.

The Lower Court dismissed the said Application for being “misconceived”. It is after “Senior Counsel for Prosecution take their leave” that it added “the EFCC and the leading Senior Advocates are in contempt of Court”, which brings into question whether that was its reason for dismissing it. Obviously, the Appellant is also right on another score; the allegations of contempt should have been contained in the Ruling of the Lower Court as its reason for dismissing the Application for stay of further proceedings, and this Court cannot speculate as to what its reasons were for doing so. It is, certainly, not the Respondent’s place to fill in the gap in this Court.

As I said the question of whether the Appellant was in contempt of Court is not an issue in this appeal. The issue that calls for determination is simply whether the Lower Court was right to dismiss the said Application without hearing from the parties first. Fair hearing involves fair trial and a fair trial of a case implies that every reasonable and fair-minded observer watching the proceedings should be able to come to the conclusion that the Court was fair to all parties – see Kotoye V. CBN (1989) 1 NWLR (Pt.98) 26, where the Supreme Court per Nnaemaku-Agu, JSC, stated –
“The rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice had been done because of lack of hearing. It is whether a party entitled to be heard before deciding had in fact been given the opportunity of a hearing. Once an Appellate Court comes to the conclusion that a party was entitled to be heard before a decision was reached but was not given the opportunity of a fair hearing, the order or Judgment thus entered must be set aside. This is because such order is against the rule of fair hearing, one of the twin pillars of natural Justice which is expressed by the maxim: audi alteram partem”.
The Supreme Court set out the basic criteria of fair hearing to include –
(a) That the Court shall hear both sides not only in the case but also on 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 to 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.
In this case, the Respondent alluded to the fact that the Lower Court gave the Appellant an opportunity to provide reason for non-compliance with the said Interim Order for his release but two wrongs do not make a right.
In the circumstances of this case, an adjournment would have sufficed, and was indeed called for. It is clear from the proceedings of that day that learned Senior Counsel for the Appellant informed the Lower Court that they had just been served with the Respondent’s Counter-Affidavit to their Application for stay, which he said was “not yet ripe for hearing”‘.
It is true; the said Application could not have been ripe for hearing; the said Counter-Affidavit is dated 17/5/2011 and filed on the same day, which is only a day before the matter came up for hearing on 18/5/2011, thus, the number of days required to file a Reply to the Counter-Affidavit had not elapsed, and the learned Senior Counsel for the Appellant did inform the Lower Court that there are substantive issues to be addressed. Essentially, the Appellant had time on its side to respond to the Counter-Affidavit filed by the Respondent only the day before, but the Lower Court went on to dismiss the said Application without hearing from the parties, which is unquestionably a violation of the Appellant’s right to fair hearing.
There are more than enough authorities in this Judgment that spell out what the consequences are for violating a party’s right to fair hearing. In Leaders Company Ltd. & Ors V. Major Gen. Musa Bamaiyi (supra), the Supreme Court categorically said – a Judgment is a nullity when it is clear that a party was denied a fair hearing”; in Salu v. Egeibon (supra), the Supreme Court very aptly said – the consequence of a breach of the rule of natural justice of fair hearing is that the proceedings in the case are null and void”; and in the famous case of Kotoye V. C.B.N. (supra), the Supreme Court per Nnaemaku-Agu, JSC, made it very clear that –
“Once an Appellate Court comes to the inclusion that a party was entitled to be head before a decision was reached but was not given the opportunity of a fair hearing, the order or Judgment thus entered must be set aside. This is because such order is against the rule of fair hearing, one of the twin pillars of natural Justice which is expressed by the maxim: audi alteram partem”.
In this case, although the Appellant’s attitude towards the Interim Order leaves much to be desired, and no matter how exasperating it was to the Lower Court, it owed itself and the parties before it, a duty to remember the basic rule of natural justice that is drummed into the heads of Judges – hear the other side [audi alteram partem]. Evidently, the Lower Court failed to remind itself of this rule, and its Ruling will have to be set aside.

Issue 2 deals with the Lower Court’s Ruling on the Application for enforcement of the Respondent’s Fundamental Rights, which is simply –

“Orders/Declarations as prayed”.

The Appellant submitted that such a one-line ruling bereft of reasons is anathema to the established mode of writing and rendering judgments; and that the Ruling is a nullity, citing Ovunwo & Anor V. Woko & Ors. (2011) LPELR-SC 297/2005, where Chukwuma-Eneh, JSC, observed –
“I have tried as per the above foregoing cases as urged by the parties based on their respective brief of argument to narrow the same to resolving issue 2 for determination only. I have given my reasons for so doing above. I must however, respectfully observe at this stage vis-a-vis the Lower Court’s manner of couching its judgment in this appeal that every judge reserves the right as to his own style of writing judgment whether sitting at the trial or appellant level of the courts. All the same, what must be recognised as settled law is the duty to pronounce judgment on all issues placed before the judge for resolution. Without over simplifying this duty every judgment has to state the fact of the case, state the points at issue requiring the court to pronounce on them, then the court’s decision with the reasons for the same.”

It also argued that merely allowing or granting the Application does not elevate it to a valid and enforceable order; and that terse uncoordinated judgments have been frowned on, citing N.I.T.T. v. Dange (2009) 9 NWLR (Pt.1091) 127, where Okoro, JCA (as he then was) held thus:
“After taking a cursory look at the one-paragraph and short Ruling, which I have recast above, can it be said that it qualifies to be a Judgment? The answer – – is in the negative. I agree that Judgment writing is a matter of style of the individual Judges. But there are certain essential and mandatory components, which a good Judgment must contain. I refer to – – Adeyeye v. Ajiboye (1987) 3 NWLR (Pt.61) 432 at 451, per Oputa, JSC –
“The proper approach – – is to first set out the claim or claims, then the pleadings, the issues in dispute, the trial Judge will then consider the evidence in proof of each issue; then decide on which side to believe and this has got to be a belief fused on the preponderance of credible evidence and the probabilities of the case. After this the trial judge will then record his logical and unsequential finding of fact. It is after such a finding that the trial court can then discuss the applicable law against the background of his findings of facts.”

In the instant case, the steps enunciated above are completely absent. See also Ogolo V. Ogolo (supra), Igwe v. Alvan Ikoku College of Education, Owerri, (1988) 2 NWLR (Pt.363) 459, Adeyemo vs. Arokopo (1988) 2 NWLR (Pt.79) 703″.
Okoro, JCA (as he then was) continued as follows in the above case-

“It is said that the learned trial Judge not only delivered to the parties an intentional Judgment on 9/7/2004 but also failed to invite them for the final judgment over three years thereafter. From the Ruling of the learned trial judge, my view is that he made his intention about the Judgment known to the parties hoping to invite them on a later date for the judgment proper but it was not to be. There is no how that ruling can be taken to be the Judgment envisaged under S. 294(1) of the Constitution – – It is no judgment at all since it lacks even the elementary requisites of a good judgment I hold the view that the learned trial judge erred substantially by failing to deliver to the parties a judgment known to law. I hold that the one paragraph ruling of the learned trial judge is a nullity not being in conformity with laid down and known principles of a good Judgment – – This appeal is hereby allowed and the suit – – remitted back to the Chief Judge of the Federal High Court for re-assignment for trial de-novo by any other Judge of that Court – -“.

It further submitted that the effect of such invalidity is that it is a nullity, being a breach of the party’s right to fair hearing, and referred us to the contribution of Ba’aba JCA in the NITT V. Dange (supra), as follows –

“There is no doubt that all the principles of fair hearing is fundamental to all Court procedure and proceedings, like jurisdiction, the absence of it vitiates proceedings, however well conducted. See Salu V. Egeibon (1994) 6 NWLR (Pt.348) 23 at 40: Ceekay Traders V. G.M. Co. Ltd. (1992) 2 NWLR (Pt 222) 132; Atano V. A.G. Bendel State (1988) 2 NWLR (Pt.75) 201. Fair hearing, according to our law, envisages that both parties to a case be given opportunity of presenting their respective cases without let or hindrance from the beginning to the end. It also envisages that the Court or Tribunal hearing the parties’ case should be fair and impartial without showing any degree of bias against any of the parties. See Ejike v. Nwankwaola & Ors (1984) 12 S.C.301; Isiyaku Mohammed V. Kano N.A. (1968) 1 ALL NLR 424. It should be noted that no explanation whatsoever was made by the Court for delivering its ruling without affording the Appellant as respondent the right of being heard before the learned trial Judge of the Federal High Court – – – delivered the Ruling in the matter, adjourned for continued hearing”.

In the light of the foregoing, it urged us to resolve issue 2 in its favour.

But the Respondent argued in his brief that the Appellant has failed or neglected to provide the entire Ruling containing the comprehensive decision of the Lower Court made on 18/5/2011; that it merely provided and relied on the Enrolment Order of the Lower Court and nothing more; that the Enrolment Order unlike the comprehensive Ruling itself, merely contains the specific order of the Court; and that from a legal standpoint, the Ruling of a Court differs from the enrolment Order of the Court.

Furthermore, that this position was made clear in Akinyemi V. Soyanwo (2006) 13 NWLR (Pt. 998) 496, where the Supreme Court held thus:

“The actual Ruling of the Court supersedes its enrolment of order. Thus, in the instant case, although the enrolment of the Order of Court of Appeal of 15th July, 1999 did not on contain the Court’s pronouncement on the 45 days duration, the actual Ruling of the Court superseded the enrolment of order”.

He contends that having failed to provide and rely on the entire Ruling the Trial Court made on 18/5/2011, the Appellant’s contention that the Lower Court failed to provide reasons for its Order made on 18/5/2011 is factually unsupported and a clear misrepresentation of fact to this Court, and he urged us to discountenance the said factual misrepresentation. The Respondent also canvassed further arguments on the Appellant’s failure to seek leave to appeal, which I have already dealt with. Besides, such objection cannot be raised when resolving issues for determination.

Be that as it may, the Appellant countered in its Reply Brief that the Ruling being appealed against is the one rendered by Archibong, J., at page 236-237 of the Record – “Court – Orders/Declarations as prayed”; that it hopes that the Respondent is not suggesting or implying that there was another Ruling of the Court other than the one referred to above; that the learned trial Judge did not write any Ruling known to law, be it short or comprehensive; that the printed record was compiled by the Registry of the Federal High Court and it did not attach any such Ruling; that what is not in existence cannot be conjured up; and furthermore –

“Once again, this is an open and shut situation where we submit, our ethics require candour and honesty. It is submitted that there are no mitigating circumstances for the Respondent to rely upon”.

Obviously, the Respondent’s argument is an attempt to grab at straws; there is no other Ruling in the Record, and no Ruling that was envisaged because the learned Senior Counsel for the Respondent said at p. 237- “I move in terms of our Application, and the Lower Court did not adjourn the matter for Ruling and merely held – “Orders/Declarations as prayed”.
As it is, a similar situation played out in Appeal No.CA/L/462/2011, where the same Counsel for the same Appellant raised the same issue and proffered the same arguments, and this is what I said in that appeal –
“It must be obvious – – that what the Lower Court passed as a Ruling is not a Ruling in its true sense. In my view, the Fundamental Rights (Enforcement Procedure) Rules, which is a serious piece of Legislation, deserved much better attention. The Rules expect more from the Court than the one-line Ruling it gave – “Order/Declarations sought prayed”. Its Preamble 1 states –
“The Court shall constantly and conscientiously seek to give effect to the overriding objectives of these Rules at every stage of human rights action, especially whenever it exercises any power given it by these Rules or any other law and whenever it applies or interprets any rule”.
The said Rules, therefore, expects the Court to do more than grant an Application as prayed in a perfunctory manner; it expects that it will apply and interpret any of its rules whenever it exercises any power given to it. The Respondent presented an Application before the Lower Court for –
a. A Declaration that his arrest, detention, harassment and incarceration by the Appellant is a violation of his Fundamental Right to dignity of human person, personal liberty and freedom of movement.
b. A Declaration that his continued detention, constant harassment, humiliation and maltreatment by the Appellant is wrongful, illegal and unconstitutional. – –
c. A Declaration that the Appellant’s act is unlawful, illegal, wrongful and unconstitutional as it violates [his] fundamental rights to dignity of human person, personal liberty and freedom of movement.
d. An Order directing the Appellant to release him from its custody immediately.
e. An Order of Perpetual injunction restraining the Appellant, whether by themselves or by their agents, servants, officers, privies from further arresting and/or detaining him in any other manner violating [his] fundamental right to dignity of human person, personal liberty and freedom of movements.
The Respondent’s liberty was at stake, and these were serious prayers; he is entitled by law to know why his Application was granted and which particular declarations/orders were granted. The Appellant believed that it had valid reasons for detaining the Respondent and also has an equal and corresponding right to know why the said Application was granted, and which particular declarations/order were made against its interest as the Respondent alleged inter alia that its acts were unconstitutional. The Lower Court’s Ruling was vague to the point of being no Ruling at all. – – it is self-evident that the purported Ruling delivered by the Lower Court on 18/5/2011 fails any known test for assessing what a Ruling in the true sense of the word is, and this issue will be resolved in favour of the Appellant – – The appeal is allowed and the said Ruling of the Lower Court delivered on 18/5/2011 is set aside for being a nullity”.

In this appeal, the same Archibong, J., delivered a similar one-line Ruling and I will adopt my reasoning in the sister appeal. But I must add that the Appellant is right; the law is settled that the Court must give reasons for its decision – see Agbanelo V. UBN Ltd. (2000) 7 NWLR (Pt.666) 534 at 537 where the Supreme Court per Karibi-Whyte, JSC, held as follows –
“It is an elementary and essential ingredient of the judicial function that reasons are to be given for decision. It is more the case where appeals lie from the decision. In any case, the reasons for decisions enable the determination on appeal whether the decision was merely intuitive and arbitrary or whether it is consistent with established applicable principles. If Judgments were to be delivered without supporting reasons it will be an invitation to arbitrariness, a rule of merely tossing the coin and the likelihood to result in judicial anarchy”.
See also the case of Ojugbue & Anor v. Nnubia & Ors (1972) All NLR 664 at 669 where the Supreme Court per Coker, JSC, held as follows –
“It is true that the learned trial Judge gave Judgment in favour of the Defendants but it is equally true that throughout the Judgment he made no clear findings in which he had unequivocally held as against Claims of the Plaintiffs – – – The result is that we cannot see the basis on which the Plaintiffs’ case was dismissed nor what is worse, the grounds on which the learned trial Judge had proceeded to enter Judgment for the Defendants. A Judgment of the Court must demonstrate a full dispassionate consideration of the issues properly revised and heard and must reflect the result of such exercise. We are unable to say that the Judgment in this case as it stands did this and we cannot allow it to stand”.

In this case, the Lower Court’s one-line Ruling is an aberration that will not be allowed to stand, and the end result is that the appeal succeeds, and it is allowed. The Rulings delivered by the Lower Court on 6/5/2011 and 18/5/2011 are null and void, and they are set aside accordingly.

SAMUEL CHUKWUDUEMEBI OSEJI, J.C.A.: I had the opportunity of prior perusal of the draft copy of the lead judgment just delivered by my learned brother Amina Adamu Augie JCA.

The issues in contention have been exhaustively and painstakingly dealt with and I cannot but agree with the reasoning and conclusion reached therein. I am however constrained to comment on the act of the learned trial judge in dismissing the appellant’s motion for stay of proceedings without much ado. The record of appeal shows that at the sitting of the Lower Court on 18/15/2011 the following proceeding was recorded.

DAUDU SAN: there is an application for stay of proceedings which is not yet ripe for hearing.
COURT: I think the application notice (sic) is ripe for hearing.
DAUDU SAN: they also served us a process, a counter affidavit to the motion for stay. There are substantive (sic) issues to be addressed.
COURT: the motion to stay of proceedings is misconceived and hereby dismissed. Move your substantive application.
Senior counsel for prosecution takes leave.
COURT: I may add that the EFCC and the leading senior advocates are in contempt in court (sic).

It is quite glaring from the above reproduced proceeding of the Lower Court on 18/5/2011 that the learned trial judge totally ignored the explanation by the learned counsel for the appellant that the motion was not ripe for hearing having been served with a counter affidavit which needs a further action. But rather proceeded to dismiss the motion that has not been moved or argued and for which proper order to be made (all things being equal) is that of striking out for want of diligent prosecution. In the instant case, there is however no basis whatsoever for an order to either dismiss or strike out the motion given the fact that it is not ripe for hearing. This reality is made manifest and justified in the statement of counsel for the respondents herein who as applicant had at the commencement of the proceedings of the day informed the court as follows:

FAGBOHUNGBE SAN: the respondents in this matter filed their process yesterday, and we were also served yesterday at about 4pm we are entitled to reply to their application and the time within which we are to reply has just commenced, and we have to work within that time.

Authorities abound that it is the duty of the court to entertain and decide on the merit of any application brought before it by any party notwithstanding the perceived strength or weakness of such an application, see for instance MOBIL PRODUCING (NIG) UNLIMITED vs MONOKPO (2004) ALL FWLR (Pt.195) 575 where the Supreme Court per UWAIFO JSC held at page 627-628 that:
“It seems to me that this principle of law has been solidly laid down by the Court of Appeal. There are very many of its decided cases on it, a few may be cited thus; Eguamwense Vs Amaghizennwen (1986) 5 NWLR (Pt.41) 282; Harods Ltd v. Anifalage (1986) 5 NWLR (PT.743) 603; Kotoye Vs Saraki (1991) 8 NWLR (Pt.211) 638; Mokwe Vs Williams (1997) 11 NWLR (PT.528) 309; Okoro Vs Okoro (1998) 3 NWLR (Pt.540) 65; Eriobuna Vs Obiorah (1998) 8 NWLR (PT.616) 622. Of the six cases cited above Tobi JCA made pronouncements in the last four in the regard to the principle of law in question which I think will project the principle. Whether in the leading judgment or his contributions in those cases, the learned justice of appeal made consistent observation. To quote what he said in his leading judgment in Eriobuna Vs Obiorah (Supra) at Page 642.”
“A court of law or tribunal has a legal duty in our adjectival law to hear any court process, including a motion before it. The process may be downright stupid, unmeritorious or even an abuse of court process. The court must hear the party or parties and rule one way or the other. A judge, whether of a court or tribunal has no jurisdiction to come to a conclusion by resorting to his own wisdom outside the established due process that a motion cannot be heard because it has no merit. That does not lie in the mouth of a judge in our adversary system of adjudication. The failure on the part of the learned tribunal to hear the motion of the 1st appellant filed on 1st May, 1999 is against the provisions of section 33(1) of the 1979 Constitution on fair hearing and particularly the natural justice rule of audi alteram partem.”
At page 655 of the report, Niki Tobi JSC stated inter alia that:
“A trial judge who refuses or fails to hear a pending motion had done a wrong thing. It is my view that the learned trial judge who refused or failed to hear the 2nd defendant did a wrong thing, wrong because it is contrary to our adjectival law.”
Further emphasis on this principle of law is formed in page 628 where in the lead judgment JSC admonished trial:
“A refusal of a court to hear a motion is a breach of the right to fair hearing guaranteed under the constitution and an essence of the audi alteram partem rule of natural justice. It is perhaps important to add that if a judge or court were at liberty to decide to ignore any motion filed in court it would raise a fundamental issue. There will be a danger that instead of allowing the administration of justice to be done upon a compulsory even keel, it may he left to the tyranny of the arbitrary or selective decision of a particular judge or court as to if and when any motion will be considered at all. The consequences of this to normal run of court proceedings are disturbing to contemplate.”
In the instant case, the act of the learned trial judge in dismissing the motion for stay of proceedings filed by the appellant on the ground that it was misconceived, without any hearing on the said motion no doubt, deprived the appellant of a fair hearing contrary to the provisions of the 1999 Constitution and to that extent renders every ruling connected therewith null and void.

For this and the fuller reasons articulated in the lead judgment I also allow the appeal. The two rulings delivered by Archibong on the 18th day of May, 2011 are hereby set aside for being a nullity.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read the draft copy of the lead judgment of my learned brother HON. JUSTICE AMINA ADAMU AUGIE, JCA and I agree with the reasoning and conclusion reached therein except to emphasize hereunder.

Two motions were filed on 5/5/011; one was an originating motion for the Enforcement of Fundamental Human Right at the Federal High Court and the other was an Ex-parte Motion under the Fundamental Human Right (Enforcement Procedure) Rules 2009. On the 6/9/11, the Lower Court granted prayer 1 of the Ex-parte Motion, which is: to release Respondent from detention forthwith pending the hearing and determination of the Originating motion filed for the enforcement of his fundamental rights.

Prayer 1 of the Motion Ex-parte was for a release of the applicant from detention. It was adjourned to the 18th day of May, 2011. On the adjourned date, both parties were present in court. The court was informed by the Applicant’s counsel of a motion for stay of proceedings filed by the Respondent on the 17th day of May, 2011; that it was not ripe for hearing and that they were still within time to file a reply. Also, that the Respondents had filed a counter affidavit to their motion.

The court, on hearing that the Applicant was yet to be released asked the Applicant counsel to move its Originating motion. At this point, the Respondent reminded the court of the motion for stay and when it seemed that the court was insisting on proceeding, all the counsel for the Respondent took their leave.

At this crucial point, the Lower Court dismissed their motion for stay and proceeded to grant the Originating motion which Applicant counsel moved in terms, thus:

“Order as prayed/declarations”

It must be stated loud and clear again in this time of our jurisprudence that, in any situation that every court in this country has the bounden duty to entertain and hear any motion before it by litigants, one way or the other. Failure to do this, but proceeding with the matter on the same day amounts to nothing but unfair hearing. Any proceedings conducted by the court in that manner cannot stand. It amounts to unfair hearing to the party in breach of Section 35 of the 1999 Constitution and will be a nullity. See S.B.N PLC V B.A.O. MOTORS (NIG) LTD (2004) 7 NWLR (Pt.945) 583 AT 592 PARA H.

As stated earlier, there was a pending motion for stay dated and filed 13/5/11 and a counter affidavit filed on the 17/5/11 thereof, which was not ripe for hearing because 2 clear days had not elapsed but the trial court went ahead to dismiss the motion notwithstanding the fact that the Appellant was still within time to respond. See also BRAWAL SHIPPING LTD V F. I. OWUADIKE CO LTD (2000) NWLR (PT.678)118; ANISIUBI v EMODI (1975) 2SC; LEADERS & CO LTD v. BAMAYI (2010) 1 NWLR 329 345 PARA C-D; ADIGUN v. A.G. OF OYO STATE (1987) 2NWLR (PT 56) 197.

Furthermore, the Lower Court on 18/5/2011 in the absence of the Respondent – granted the Originating Summons – in this manner “Court: – Order/Declarations sought as prayer.” In the meantime, the Respondent had filed a motion for stay of proceedings dated 13/5/11 – it was dismissed suo motu before the order was made. In the above scenario in a matter for fundamental human rights – the crux here is “Will a reasonable and fair-minded observer who watched proceedings be able to come to the conclusion that the court has been fair to all the parties? See MMS LTD v OTEJU (2005) 14 NWLR (PT 945) 517; ARORI V. ELEMO (1983) 1 SCNLR 1.

The Appellant had stated that the court granted their oral application for leave to withdraw appearance and take their leave. This is contained in the preamble of their brief of argument but upon a closer scrutiny of the record of process it does not bear out this assertion I shall reproduce the relevant proceedings at pages 234-235 thus:

“DAUDA SAN: They also served on us a process a Counter Affidavit to the motion for stay. There are substantive issues to be address court. The motion for stay of proceedings is misconceived and hereby dismissed.
COURT: Move your application.
Senior Counsel for prosecution take their leave.
I may add that the EFCC and the leading Senior Advocates are in contempt in court
FAGBOUNGBE SAN: We have an application dated 5th day of May, 2011 and filed the same day.

We have an affidavit in support of 15 paragraphs. Declaration is the arrest, detention, harassment and incarceration of the applicants fundamental rights to dignity of human person, personal liberty and freedom of movement guaranteed by Sections 34, 35 and 41 and we seek the reliefs listed on the motion paper.
We rely on the affidavit in support and adopt our written address

COURT: They filed a counter affidavit yesterday which they would have now argued but they say they are taking their leave.

The underlying issue of counsel would be why an interim court order was disobeyed”.

I am bound by the records of appeal transmitted as to this court.

However, it is apparent that the Appellants were not present when the order was made. It is trite that where a trial court denies a party before it, the opportunity to be heard it is a breach of his constitutional right to fair hearing and where there is a failure to give any reason for so doing, the Appellate Court is duty bound to interfere in the matter. See MOBIL PRODUCING V MONOKPO (2003) 18 NWLR (852) 346 AT 412 PARA D-E; ANISIUBI V. EMODI (1975) 2 SC 9. See also Section 33 & 36 of the 1999 Constitution (as amended).

In the final analysis, the Trial Judge overreached the Respondents by going ahead to hear the Originating motion in spite of the pending motion notice for stay and in the absence of the Respondent counsel, the fact that it was barely the second day – after service, it was not a 2 clear days and it has not satisfied the requirement for two clear days before any motion can be heard. What is more, the Appellant still had time to respond to the pending motion; there was no need for any rush having granted the release in the exparte motion even though the order to release the applicant was yet to be complied with.

It is a clear case of overreaching the other party to grant the same Prayer in the Originating Summons in ‘Leg D’amongst others without stating reasons.

The rules of Fundamental Human Rights Enforcement Procedure Rules 2009 are strict, in the sense that, all the requirements must be complied with and the statements, affidavit and written addresses filed, must be considered by the court. In this case the judgment did not state any reasons; it was bereft of any reasons, it was vague on what orders and declarations it granted. This type situation has been aptly condemned in a host of cases. See NITT v. DANGE (2009)9 NWLR (PT.1091) 127; ONUNWO & ANOR V WOKO & ORS (2011) LPELR SC.297/2005.
Certainly, the procedure adopted by the trial court has occasioned a clear breach of fair hearing and procedural law. According to CHUKWUMA-ENEH JCA (as he then was) in SBN PLC v BAO MOTORS (Supra) at 597:
“The whole essence of justice is largely procedural. Fair hearing is spoken of more in matters of Procedure … To ignore fair hearing is to enthrone arbitrariness.”
See also SALU v EGEIBON (1994) 6 NWLR (Pt.348) 23 AT 40; KOTOYE V CBN (1989) 1 NWLR (PT.98) 26.

For this reason and all other reasons contained in the lead judgment, I too allow the appeal and set aside the rulings of 6/5/11 and 18/8/11 respectively and I abide by the consequential orders in the lead judgment.

Appearances

J. B. Daudu (SAN) with Dr. K. U. K. Ekwueme, Esq., Adedayo Adedeji, Esq., and Miss Adetutu DisuFor Appellant

AND

Opeyemi Usiola-Kuti, Esq., with Mrs. Ogunola JegedeFor Respondent