EKEBUIKE v. UNITY KAPITAL ASSURANCE PLC
(2022)LCN/16458(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Tuesday, February 08, 2022
CA/A/1028/2019
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Kenneth Ikechukwu Amadi Justice of the Court of Appeal
Between
KINS EKEBUIKE APPELANT(S)
And
UNITY KAPITAL ASSURANCE PLC RESPONDENT(S)
RATIO:
POSITION OF LAW WHEN A COMPLAINT IS MADE AGAIST THE COMPETENCE OF AN APPEAL
The norm of filing objection is not clear. Where the respondent complains of the competency of a ground of appeal as in this appeal and the other grounds are in order, and can sustain the appeal, the respondent ought to file a Motion on Notice to strike out the incompetent grounds and not a Preliminary Objection. See Muhammed v. Military Administrator Plateau State 2001 16 NWLR Pt. 740 P. 524, NDIC v. Oranu 2001 18 NWLR Pt. 744 P. 183. Finally, and for emphasis, a Preliminary Objection is filed only against the hearing of the appeal and not against one or more grounds of appeal. See SPDC (Nig.) Ltd v. Amadi & Ors., (2011) LPELR – 3204 (SC) and Odunukwe v. Ofomata (2010) 18 NWLR (Pt. 1225) 404, Per Rhodes Vivour, JSC. STEPHEN JONAH ADAH, J.C.A.
POSITION ON LAW ON THE FUNDAMENTAL RIGHT OF A PARTY IN A MATTER
In the case of Walter Wagbatsoma v. FRN (2018) LPELR – 43722 (SC), the Supreme Court Per Kekere-Ekun, JSC, held thus:
“…This issue is quite fundamental for it is well settled that any proceedings conducted in breach of a party’s fundamental right to fair hearing, which is guaranteed by Section 36 of the 1999 Constitution, renders the entire proceedings null and void. In Kotoye v. CBN (1989) 1 NWLR (Pt. 98) 419 AT 488 C – D, it was held thus: “The rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice has been done because of lack of fair hearing. It is whether a party entitled to be heard before deciding had in fact been given the opportunity of a hearing. The order or judgment thus entered is bound to be set aside. This is because such an order is against the rule of fair hearing, one of the twin pillars of natural justice which is expressed in the maxim: audi alteram partem”. See also: A.G. Rivers State v. Ude & Ors (2006) 17 NWLR (Pt. 1008) 436, (2006) LPELR- 626 (SC) AT 19 B- D, Odedo v. PDP (2015) LPELR- 24738 (SC) AT 38 – 39, Hon. Justice Titus Adewuyi Oyeyemi (Rtd.) v. Hon. Timothy Owoeye & Anor. (2017) LPELR – 41903 (SC) AT 56 B-E.” STEPHEN JONAH ADAH, J.C.A.
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the National Industrial Court, Abuja, coram: O. Y. Anuwe, delivered on 7th October, 2019 in Suit No. NICN/ABJ/122/2018.
The appellant as claimant instituted this action at the trial Court and claimed against the respondent as defendant all the sundry reliefs as per the statement of Claim, thus:-
1.) A Declaration by the Honourable Court that the failure, neglect and/or deliberate refusal of the Respondent to fully comply with the provisions of paragraph (b) of the compromise or settlement agreement between the parties is a breach of the contract entered into by the parties.
2.) A Declaration of this Honourable Court commanding the Respondent to pay the sum of N84,989,982.38k (Eighty-Four Million, Nine Hundred and Eighty-Nine Thousand, Nine Hundred and Eighty-Two Naira, Thirty-Eight Kobo) only, being 50% salary, allowances and entitlements arrears from 1st October, 2014 to 2nd October, 2017 as agreed in paragraph (b) of the parties settlement agreement dated October, 2017.
3.) An Order of this Honourable Court commanding the Defendant to pay the sum of N100,000,000.00 (One Hundred Million Naira) only to the claimant as damages for breach of contract.
4.) An Order of this Honourable Court commanding the Respondent to pay 10% interest of the judgment sum per annum until the judgment sum is liquidated.
5.) AND FURTHER sum of N10,000,000.00 (Ten Million Naira) only as cost of this suit.
The claimant, in order to prove his claims gave evidence and tendered several Exhibits. The Defense opened his case and informed the Court that he is resting his case on the case of the claimant. At the close of hearing, parties filed their respective written addresses. In a considered judgment delivered on the 7th day of October, 2019, the trial Court dismissed the claims.
Dissatisfied with the judgment of the trial Court, the appellant appealed to this Court vide a four ground Notice of Appeal filed on the 18th October, 2019. The record of appeal was transmitted to this Court on the 4th day of November, 2019.
In line with rules of this Honourable Court, parties filed and exchanged their respective briefs of argument.
Counsel for the appellant distilled three issues in the Appellant’s Brief of Argument dated and filed 21st day of January, 2020, but deemed properly filed and served on the 25th day of November, 2020, thus:
1. Whether it was right for the trial Court to vacate its order of subpoena without allowing the witness to give evidence and producing demanded documents summoning him despite the fact that the Claimant/Appellant had earlier given them notice to produce the said documents in paragraph 26, 27 and 28 of his statement of claim and also considering the fact that the Defendant/Respondent surreptiously declined to call her only witness on record.
2. Whether it is not the duty of the Courts to pronounce on all issues raised before it, particularly issues no. 6 on the claimant/Appellant’s final written address
3. Whether in the consideration of grounds 3 and 4 of the claimant/applicant’s ground of appeal he did not provide enough evidence to ground his relief sought in his statement of claim.
Learned counsel for the respondent in response distilled two issues for determination of this appeal from the four grounds of appeal. Thus:
1. Whether the learned trial judge disallowed the appellant/claimant from calling any witness and or tendering any documents he wished to call thereby denying the appellant a fair hearing in this case. (Ground 1 & 2).
2. Whether the appellant/claimant pleaded and proof to the satisfaction of the Court what constituted the 50% of his entitlement, benefits and severance packages. (Grounds 3 & 4).
I shall adopt the issues as submitted by the appellant in considering this appeal. But, before I proceed, the learned counsel for the respondent filed a Notice of Preliminary Objection challenging the competence of the appeal. Preliminary Objections are filed against the hearing of an appeal and so once it succeeds the appeal no longer exists. All too often we see Preliminary Objections filed against one or more grounds of appeal. Once there are other grounds that can sustain the appeal, a Preliminary Objection should not be filed. Instead, a Notice of Motion seeking to strike out the defective grounds of appeal should be filed. In this case, a Preliminary Objection was properly filed, because if it succeeds the appeal comes to an end. See NEPA v. Ango 2001 15 NWLR Pt. 737 P. 627. It is filed only when the respondent is satisfied that there is some fundamental defect in the appellant’s process. The sole purpose being to terminate the appeal usually on grounds of incompetence. See Ndigwe v. Nwuse 1999 11 NWLR Pt. 626 P. 314, NEPA v Ango (supra). The norm of filing objection is not clear. Where the respondent complains of the competency of a ground of appeal as in this appeal and the other grounds are in order, and can sustain the appeal, the respondent ought to file a Motion on Notice to strike out the incompetent grounds and not a Preliminary Objection. See Muhammed v. Military Administrator Plateau State 2001 16 NWLR Pt. 740 P. 524, NDIC v. Oranu 2001 18 NWLR Pt. 744 P. 183. Finally, and for emphasis, a Preliminary Objection is filed only against the hearing of the appeal and not against one or more grounds of appeal. See SPDC (Nig.) Ltd v. Amadi & Ors., (2011) LPELR – 3204 (SC) and Odunukwe v. Ofomata (2010) 18 NWLR (Pt. 1225) 404, Per Rhodes Vivour, JSC.
In the instant case, the respondent raised two issues in respect of the Preliminary Objection. Thus:
a. Whether grounds 1 and 2 of the Notice of appeal is competent.
b. Whether by the combined effect of the Supreme Court decision in SKYE BANK V. IWU (2017) LPELR-42595 (SC) PER NWEZE JSC PP 54-64 PARAGRAPH E-A the entire appeal herein has not offended the provision of Section 243 (4) of the 1999 Constitution (as amended).
The first issue raised by the respondent is that the appellant did not appeal against the said ruling and has with Section 242 (1) of the 1999 Constitution and therefore, urged the Court to strike out grounds 1 and 2 of the Notice of Appeal. Counsel relied on Section 241 of the 1999 Constitution (As Amended)
In response, learned counsel for the appellant submitted that by virtue of Order 4 Rule 5 of the Court of Appeal Rules, 2016, the powers of the Court of Appeal in respect of Appeals shall not be limited by reason of interlocutory order from which there has been no appeal under the rules a party who is dissatisfied with a judgment or appeals against it may raise complaint against an interlocutory decision made by the trial Court even though he has not appealed against the interlocutory order when it was made. Counsel relied on the cases of FBN v. Tsoka (2004) 5 NWLR (Pt. 866) 271 Ratio 17, Okobia v. Ajanya (1998) 6 NWLR (Pt. 554) 348, Iweka v. SCOA Nig. Ltd (2000) 7 NWLR (Pt. 664) 325.
The second issue raised by the respondent is that the entire appeal by the decision of Supreme Court in Skye Bank v. Iwu (2017) LPELR-42595 (SC) Per Nweze JSC PP54-64 Para. E- A, has not offended the provision of Section 243 (4) of the 1999 Constitution (As Amended) and that this Court lacks the jurisdiction to entertain this appeal as the necessary conditions were not fulfilled. Counsel relied on the case of Madukolu v. Nkemdilim (1962) 2 SCNLR 341.
In response to this issue, the appellant argued that, consequent to the provisions of Section 243 (2) of the 1999 Constitution (as amended). He submitted that the Ground 2 of the Appellant’s Notice of Appeal is condensed on the issue of lack of fair hearing to the appellant, which is an issue hinging on fundamental Rights as such will attract the benefits of Section 243 (2) of the 1999 Constitution (As Amended).
It is fundamental to know that this Court under Order 4 Rule 5 of the 2021 Rules, made it expressly clear that the power of the Court in respect of an appeal shall not be restricted by reasons of any interlocutory order from which there has been no appeal. This Court in the case of Adie v. Ochui & Ors (2018) LPELR – 46160 (CA), Per Nimpar, JCA, had extensively addressed this issue before His lordship gave the correct treatment to this issue and held that when a pronouncement is part and parcel of the proceedings, a party can wait to make it part of the challenge to the final decision on appeal. Furthermore, there is a provision in the Rules of the Court that takes care of situation such as this in the following words: “The powers of the Court in respect of an appeal shall not be restricted by reason of any interlocutory order from which there has been no appeal”. See Order 4 Rules 5 of the Court of Appeal Rules 2016. On whether an appellant can raise a complaint against interlocutory order in an appeal against final judgment, it attracted divergent views on it, but, I agree with the views expressed in the cases mentioned hereunder. In Umana v. Attah (2004) 7 NWLR Part 871 P. 63 at 87, where the case of Aondoakaa v. Ajo (1999) 5 NWLR Part 602 P. 206 at 266 was referred to, it was held that a ground of appeal from a final judgment in an election petition incorporating a complaint against an interlocutory decision given in the course of a trial is competent. Furthermore, in Okobia v. Ajanya (1998) 6 NWLR Part 554 P. 348, Ogundare, JSC, said thus: “On the issue that the Court below should not have considered the issue of Exhibit M raised by the defendants before it as there was no application to appeal out of time against the trial Court’s ruling on Exhibit ‘M’, my simple answer (in addition to what my brother Mohammed, JSC, said on the issue) lies in Order 3 Rules 22 of the Court of Appeal Rules which provides: “22. No interlocutory judgment or order from which there has been no appeal shall operate so as to bar or prejudice the Court from giving such decision upon the appeal as may seem just.” The Court below was, therefore, not precluded from considering the validity or otherwise of Exhibit ‘M’ notwithstanding that the defendants did not appeal against the trial Court’s ruling on the document. By virtue of Order 3 Rules 22, they could still raise the issue on appeal as they, in fact, did in the Court below. It is not necessary for them to seek extension of time to appeal against the interlocutory decision of the trial Court. This position also applies to this case. There is no change in the law yet.
I have scan through the argument of the parties on this Preliminary Objection. My take is that the objection is lacking in merit. The objection is accordingly dismissed.
I shall now go into the merit of the appeal.
MAIN APPEAL:
Issue One:
This issue is – whether it was right for the trial Court to vacate its order of subpoena without allowing the witness to give evidence and producing demanded documents summoning him despite the fact, that the claimant Appellant had earlier given them notice to produce the said documents in paragraph 26, 27 and 28 of his statement of claim and also considering the fact that the Defendant/Respondent surreptiously declined to call her only witness on record.
Learned counsel for the appellant submitted that the trial Court erred in law and denied the claimant/appellant the natural right of fair hearing by dismissing a subpoenaed witness, who was supposed to produce documents for which the defendant/respondent has already been put on notice, especially in the light of the fact, that the defendant/respondent had concocted to steal a march on the claimant/appellant by not calling its only witness on record who deposed to their witness statement on oath. He further argued that any law which deprives a party of a fair hearing contrary to the provisions of the Constitution and to that extent is void. Counsel relied on the cases of Nwongo v. Aku & Ors (1983) 11 SC 129 AT 153, Mobil Producing Nig. Ltd. v. Monokpo (2004) All FWLR (Pt. 195) AT 628, Omidiran v. Etteh (2011) 2 NWLR (Part 1232 Pg. 47 Pt. 479 Ratio 7, 9, 11, 12 and 13.
Learned counsel for the appellant further submitted that the above case is mutatis mutandi with the present case, where the trial Court after issuing a subpoena, dismissed the subpoenaed witness from testifying in the matter. Counsel relied on the case of Samba Petroleum Ltd & Anor v. United Bank for Africa (USA) & 2 Ors., (2010) 43 NSCR 1119 AT 137; Order 39 Rule 17 (2) of the National Industrial Court of Nigeria (Civil Procedures) Rules 2017.
In response, learned counsel for the respondent argued that the complaint of the appellant particularly grounds 1 and 2 of the Notice of Appeal rest squarely on this ruling of 27th May, 2019, and not on the judgment of the lower Court dated the 7th October, 2019. The two grounds are therefore, incompetent and should be struck out. He further argued that parties swim or sink with their counsel and it is not the business of the Court to direct counsel on how to conduct their cases. Counsel relied on the cases of Adekoya v. State (2014) LPELR-22933 (CA) PP. 38- 39 Para. B-C, Suberu v. State (2010) LPELR-3120 (SC) and Afonja Community Bank (Nig.) v. Akpan (2001) LPELR-6958 (CA).
Learned counsel for the respondent argued that the appellant cannot therefore complain of fair hearing as the parties were given full opportunities and time to present their cases. Counsel relied on the case of Nnanah v. Usoro (2013) LPELR- 20822 (CA). He further argued that the subpoena was issued after the appellant has closed his case. It is therefore the duty of the appellant to show how he was denied fair hearing. Counsel relied on the case of Bill Construction Co. Ltd v. Imani & Sons Ltd/Shell Trustee Ltd. (2006) LPELR-782 SC.
In this case, the major issue is that the witness subpoenaed at the instance of the appellant to produce documents mentioned in paragraphs 26, 27 and 28 of his Statement of Claim vacated the order of subpoena without allowing the witness to give evidence and produce the documents demanded for. The underlining facts in the case at the trial Court is that the Defendant (Respondent) had declined to call his only witness on record and rested her case on that of the appellant. The appellant needed some documents for his case. He sought and obtained order of subpoena on a witness to produce the documents. The trial Court vacated the order and prevented the appellant from summoning the documents badly needed for his case. This documents were well specified in paragraphs 26, 27 and 28 of the Statement of Claim which read:
26. That the Defendant is hereby put on notice to produce the retirement document of Mohammed Kari, his immediate predecessor, to clear the air to the actual computation of the entitlements and salaries of the Managing Director of the Defendant company.
27. To also produce the retirement file of Mr. John Oyidih, the former Executive Director Finance under the Claimant.
28. The Defendant is also put on notice to produce the bank statement showing the payment of the entitlements of the above named officers of the Defendant company.
(Underlining mine).
By Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999, it is provided thus:
36.-(1) In the determination of his civil rights and obligations, 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 other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.
Fair hearing means fair trial which is a trial conducted according to all legal rules formulated to ensure that justice is done to the parties. In the instant case, the appellant’s desire to subpoena a witness to produce some vital documents and testify in his favour was thwarted by the trial Court thereby occasioning a failure of justice. The appellant truly was denied his fundamental right to fair hearing in this case. In the case of Walter Wagbatsoma v. FRN (2018) LPELR – 43722 (SC), the Supreme Court Per Kekere-Ekun, JSC, held thus:
“…This issue is quite fundamental for it is well settled that any proceedings conducted in breach of a party’s fundamental right to fair hearing, which is guaranteed by Section 36 of the 1999 Constitution, renders the entire proceedings null and void. In Kotoye v. CBN (1989) 1 NWLR (Pt. 98) 419 AT 488 C – D, it was held thus: “The rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice has been done because of lack of fair hearing. It is whether a party entitled to be heard before deciding had in fact been given the opportunity of a hearing. The order or judgment thus entered is bound to be set aside. This is because such an order is against the rule of fair hearing, one of the twin pillars of natural justice which is expressed in the maxim: audi alteram partem”. See also: A.G. Rivers State v. Ude & Ors (2006) 17 NWLR (Pt. 1008) 436, (2006) LPELR- 626 (SC) AT 19 B- D, Odedo v. PDP (2015) LPELR- 24738 (SC) AT 38 – 39, Hon. Justice Titus Adewuyi Oyeyemi (Rtd.) v. Hon. Timothy Owoeye & Anor. (2017) LPELR – 41903 (SC) AT 56 B-E.”
In the instant case, the right of the appellant to fair hearing as earlier pointed out was rudely breached. This issue is therefore resolved in favour of the appellant.
This issue of lack of fair hearing is very fundamental. Any proceeding where the fundamental right of a party to fair hearing is breached is a nullity. This therefore settles the appeal. The other issues raised have become academic. Issues 2 and 3 are hereby discountenanced.
From the foregoing therefore, this appeal is allowed. The decision of the trial Court in Suit No: NICN/ABJ/122/2018, is hereby set aside. The case is remitted back to the trial Court for retrial and it shall be by another judge of that Court.
MOHAMMED MUSTAPHA, J.C.A.: I had the privilege of reading the judgment of my learned brother STEPHEN JONAH ADAH, JCA. I agree entirely with the findings as well as conclusions therein, and adopt them as mine.
I abide by all the consequential orders.
KENNETH IKECHUKWU AMADI, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother, STEPHEN JONAH ADAH, JCA. I agree with the reasoning therein and the conclusion reached. The judgment of the lower Court is also set aside by me. This case shall be remitted back to the lower Court for retrial by another Judge. This appeal is allowed.
Appearances:
P. T. Longinus, Esq., with him, Joy Ukado, Esq. For Appellant(s)
S.A. Akani, Esq. For Respondent(s)