ELIZABETH MONDAY SAMBO & ORS. v. SOLOMON ETIM OKON & ORS.
(2013)LCN/5913(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of February, 2013
CA/C/314/2011
RATIO
“In Attorney-General vs. H.R.H. prince Ernest Agustus of Hanover (1957) A.C. 456 at 467-469 Lord Normand explained the purport of a preamble: “When there is a preamble it is generally in its recitals that the mischief to be remedied and the scope of the Act are described. It is therefore clearly permissible to have recourse to it as an aid to construing the enacting provisions?” see also chairman, L.E.D.B. vs. Said (1968) NMLR 183/189; Okeke vs. Attorney-General of Anambra State (1992) 1 NWLR (pt. 215) 60 at 83 paragraph “B”-“C”.” Per TUR, J.C.A.
“Where a person’s legal right has been infringed or invaded, and injunctive reliefs are claimed and proved at the trial, the successful party is entitled to damages. And cost of the litigation. In McGregor on Damages, 14th edition page 5 paragraphs 1 and 2, the learned authors have written that: ‘DAMAGES are the pecuniary compensation, obtainable by success in an action, for a wrong which is either a tort or a breach of contract, the compensation being in the form of a lump sum which is awarded unconditionally and is generally, but now not necessarily, expressed in English currency.” At page 6 paragraph 7 of McGregor On Damages (supra) the learned authors further explained that: ‘Before damages can be recovered in an action there must be a wrong committed, whether the wrong be a tort or a breach of contract. Even if a loss has been incurred, no damages can be awarded in the absence of a wrong: it is damnum sine injuria. Therefore the preliminary question to be answered, before any issue of damages can arise, is whether a wrong has been committed…” Per TUR, J.C.A.
“A Court is bound to dispose all preliminary objections before proceeding with the substantive application or suit. See Olosunde & Ors. vs. Chief Eyialegan & Ors. (2005) All FWLR (Pt.242) 505 at 510; Ogoja Local Government vs. Offohoche (1996) 7 NWLR (Pt.458) 48; Onyemeh vs. Egbuchulam (1996) 5 NWLR (Pt.448) 255; Ohaneku vs. Eheruo (2002) 1 NWLR (Pt.748) 301 at 309; Ogbanu vs. Oti (2000) 8 NWLR (pt.670) 582 at 590.” Per TUR, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
Between
1. ELIZABETH MONDAY SAMBO
2. PATIENCE MONDAY SAMBO
3. ODIONGKA ASUQUO ETIM Appellant(s)
AND
1. SOLOMON ETIM OKON
2. MRS. AFFIONG SOLOMON ETIM
3. AGNES SOLOMON ETIM
4. EKPENYONG SOLOMON ETIM
5. GODWIN BASSEY ETIM
6. ANTIGHA SOLOMON ETIM Respondent(s)
JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice Calabar, Cross River State, delivered by Hon. Justice Okoi I. Itam on 22nd day of March, 2010 entering judgment in favour of the Respondents wherein the appellants being aggrieved, filed their joint Notice of Appeal on 17th May, 2010 challenging the various awards made in favour of the Respondents. The 1st-3rd appellants filed their joint brief of argument on 18th May, 2012. When the appeal came up for hearing on 16th January, 2013 the names of the 4th, 5th and 6th appellant’s were struck out on the application of the learned Counsel to the appellants. Learned Counsel to the appellant’s adopted the joint brief of argument urging that the appeal be allowed. The 1st-6th Respondents’ joint brief of argument filed on 22nd June, 2012 was also adopted by their learned Counsel who urged that this appeal should be dismissed.
Learned Counsel to the appellants and set out the issues for determination by this Court. The learned Counsel to the Respondents adopted the same issues.
Learned Counsel to the Respondents adopted the same issues as formulated by the appellants. Before delving into the issues 1 shall set out the facts that led to the institution of this suit and subsequent appeal.
On the 15th April, 2009 a fight ensued between the 1st-3rd appellants and the Respondents at No. 5, Howell Street, Calabar, Cross River State where all the parties reside. Both parties reported to the Police. The Respondents were however arrested but later released on bail. They alleged that while in police detention they were tortured by the police. Upon release the Respondents applied on 15th April, 2009 for leave of the lower Court to enforce their fundamental rights under the Fundamental Rights (Enforcement Procedure) Rules, 1979. The learned trial Judge granted leave on the 22nd day of April, 2009. Hearing of the substantive motion on notice was fixed on the 4th day of May, 2009. The motion on notice was thereafter filed on 29th April, 2009 where in the Respondents sought the following reliefs:
“(a) A DECLARATION that the arrest, torture, humiliation and detention of the 4th Applicant in Police Cell at Cross River State Police Headquarters (CID, section) Calabar on 19/3/2009 as well as the arrest, torture, humiliation and detention of the 2nd Applicant in police cell at Zone 6 police Headquarters, Calabar from 26/3/2009 to 27/3/2009 respectively by agents of the 4th, 5th, and 6th Respondents at the behest of or request of the 1st – 3rd Respondents is without any particular criminal offence against the said Applicants and therefore illegal and a breach of Applicants fundamental rights as guaranteed under Sections 34, 35, 36, 37 and 41 of the constitution of the Federal Republic of Nigeria, 1999.
(b) A DECLARATION that the incessant harassment of the Applicants by the Respondents and threat by the Respondents to arrest, torture and detain the applicants as well as invasion of Applicants’ privacy and to order the 2nd Applicant to be reporting to the police station on a daily basis without which she will be rearrested is without any particular criminal offence against the said applicants and therefore a breach of the fundamental rights of the Applicants, illegal, unlawful and contrary to Section 34, 35, 36, 37, and 41 of the Constitution of the Federal Republic of Nigeria, 1999.
(c) AN ORDER OF PERPETUAL INJUNCTION restraining the Respondents by themselves, their servants, cohorts, privies or agents from further harassing, threatening to arrest, arresting, torturing, detaining, molesting, blackmailing and/or tampering with the applicants Right as enshrined in sections 34, 35, 36, 37 and 41 and 46(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999.
(d) A CLAIM OF EXEMPLARY DAMAGES in the sum of N5,000,000.00 (Five Million Naira) only against the Respondents jointly and severally for breach of the Fundamental Rights of the Applicants as a result of the aforesaid illegal activities of the Respondents.”
The grounds for seeking relief are as follows:
Sometime in 2007, the 1st Respondent borrowed the sum of N20,000.00 from the 2nd appellant but refused to refund/repay within 6 months as agreed in spite of entreaties. Instead the 1st Respondent picked quarrel with the 2nd appellant calling her a witch. That the money which 2nd appellant lent to her was from the witches world, hence she could not make meaningful profit. The 1st Respondent runs a small food canteen at No. 5, Howell Street, Calabar where the 1st, 2nd, 4th and 6th respondents also reside. The 1st appellant further accused the 1st Respondent of being responsible for bad business she was experiencing.
On 17/3/2009, the 1st appellant went to 1st respondent’s residence at No. 5, Howell Street, Calabar, grabbed her by his trouser accusing the 1st and 2nd Respondents of bewitching her and her family and business. That the respondents wanted to kill 1st appellant through witchcraft. As the large crowd surged, the 1st appellant held the 1st respondent’s dress and continued shouting. As the 2nd Respondent rushed out of the 1st appellant picked up an empty bottle and hit him on the head, causing her grievous injury. The 2nd and 3rd appellants also seized the 6th respondent, a 14 year old boy, and mercilessly beat him that he was a small witch. The crowd dispersed with the 1st-3rd appellants when the 2nd respondent collapsed. The 3rd respondent’s daughter got wind of her mother’s injury and rushed to No. 5, Howell Street, Calabar and took her to Mbukpa police Station.
Thereafter the 2nd Respondent was taken to Mambo Clinic and subsequently to the General Hospital, Calabar for further treatment. The Police at Mbukpa police station appeared slow in effecting the arrest of the 1st-3rd appellant or to investigate the matter, the 2nd respondent wrote a petition to the Commissioner of Police, Cross River State against the appellants on 18th March, 2009. Instead of arresting the 1st-3rd appellants the 4th respondent arrested, tortured and detained the Respondents at Cross River state Police Headquarters, Diamond Hill, Calabar on 19th March, 2009. Again on 26/3/2009 about 12 midnight, police from Zone 6, at the behest of the 1st-3rd appellants arrested the 2nd respondent, from her residence at 5, Howell Street Calabar, tortured and detained her at Zone 6 Police cell. The 2nd and 4th respondents were later released on bail with instruction they should be reporting to Zone 6 Police Headquarters, Calabar on daily basis. The police had been visiting the respondents’ residence and for the purpose of arresting and torturing the others for no just cause except to do the bidding of the 1st-3rd appellants. The 1st-3rd appellants swore to deal ruthlessly with the respondents using their police connection. instead of taking the matter to Court as requested by the respondents, the appellants were bent on making the respondents suspects in the case, taking laws into their hands thereby depriving the respondents of their fundamental rights, from freely engaging and carrying on with their legitimate businesses.
The application for the enforcement of the Respondents fundamental rights before the lower Court was supported by a verifying affidavit of Solomon Etim Okon. Upon service of the motion on notice the appellants filed a Notice of Preliminary objection to the hearing of the substantive motion supported by affidavit on 8th July, 2009. The grounds of objection were that the lower Court had no jurisdiction to entertain the application for non-compliance with some provisions of the Cross River State of Nigeria High court (Civil Procedure) Rules, 2008. The appellants accompanied the preliminary objection with a written address without a counter affidavit. The 1st-3rd Respondents filed a counter affidavit in respect of the preliminary objection on 26th October, 2009, deposed to by Solomon Etim Okon (1st Respondent) and accompanied with a written address. The Court did not sit on the 4th day of May, 2009 the day the substantive application was to be heard. The preliminary objection suffered series of adjournments because of strike action by the Staff of the State Judiciary (JUSUN). On the 1st March, 2010 counsel adopted their respective briefs of argument. The learned trial Judge delivered ruling on 22nd March, 2010; over-ruled the preliminary objection with cost assessed at N3,000.00 in favour of the Respondents. His Lordship proceeded to deliver judgment in favour of the Respondents on the grounds that the appellants did not file a counter affidavit to the substantive application. That it was no excuse for the appellants, upon filing a preliminary objection, not to have filed a counter-affidavit to disparage the facts in the substantive application.
ISSUES FOR DETERMINATION:
“1. Whether or not the appellants were denied fair hearing by the Court below.
2. Whether at the time judgment was delivered in the case, the Motion on Notice for enforcement of the Respondents, fundamental rights was still proper before the Court.
3. Whether the court below was right in awarding damages of One Million Naira to the Respondents without considering the merit of the application.”
ISSUE ONE (1):
Learned Counsel to the appellants’ submission on issue one is that though the exparte application was filed under the Fundamental Rights (Enforcement Procedure) Rules, 1979, by the time his Lordship delivered judgment on 22nd March, 2010 those rules had been abrogated. The Fundamental Rights (Enforcement procedure) Rules, 2009 Rules had come into effect. Notwithstanding the abrogation, the learned trial Judge should have allowed the appellants to file a defence to the hearing of the substantive application rather than proceeding to deliver judgment. This affected the appellants’ right to fair hearing. Counsel cited Zangina vs. Commissioner of Works and Housing, Borno State (2001) FWLR (Pt.79) 1368 at 1386; Attorney-General of Lagos State vs. Dosunmu (1989) 3 NWLR (Pt.111) 552; Fagbule vs. Rodrigues (2003) FWLR (Pt.137) 1171 at 1188; Alsthom vs. Saraki (2005) 3 MJSC 125 at 145; Josiah Cornelius Ltd. vs. Ezenwa (2002) FWLR (Pt.117) 1207 at 1222 paragraph “E”. Counsel urged the Court of Appeal to interfere with the discretion of the learned trial Judge in this circumstance. That issue one be resolved in favour of the appellants.
Counsel to the Respondents’ replied that as the appellants had not filed any counter-affidavit upon receipt of the substantive motion on notice, once the preliminary objection was dismissed, the respondents were entitled to judgment based on the unchallenged affidavit. Counsel contended that applications under the Fundamental Right (Enforcement Procedure) Rules, 2009 are meant to be handled with dispatch. The appellants failed to follow the particular procedure prescribed under the 2009 Rules (supra) hence the Respondents were entitled to judgment. Counsel cited Raymond Dongtoe vs. Civil Service Commission, Plateau state (2001) NWLR (Pt.71) 132 at 153; NUT vs. Conference of Secondary School Tutors Nig. (2006) All FWLR (Pt.295) 656 at 658 and Din vs. Attorney-General of the Federation (1988) 4 NWLR (Pt.87) 147 at, 186. It was further contended that a counter-affidavit should have been filed along with the Notice of preliminary objection as required under the 2009 Rules (supra). The appellants had all the opportunity to file a counter-affidavit but they did not do so, hence they could not be heard to complain that their right to fair hearing had been breached. Counsel cited Umuhu Okabia Community Bank Nig. Ltd. vs. Chancellor Okonkwo & Ors. (2009) 5 NWLR (Pt.1134) 401 at 407; Okwute vs. Nwadike (2009) 5 NWLR (pt.1134) 360 at 366 and 375, and finally prayed that issue one should be resolved against the appellants.
When the Respondents brought an exparte application for leave to enforce their fundamental rights on 17th March, 2009, the applicable Rules were the Fundamental Rights (Enforcement Procedure) Rules, 1979. See Uwaifo vs. Attorney-General of Bendel State (1989) 7 SC 124; Atorney-General of Lagos State vs. Dosunmu (1989) 3 NWLR (pt.111) 552 and Utih vs. Onoyiuvwe (1991) 1 SCNJ 25 at 45. But in exercise of the powers conferred under Section 46(3) of the Constitution of the Federal Republic of Nigeria, 2009 the Chief Justice of Nigeria made the Fundamental Rights (Enforcement Procedure) Rules, 2009 with commencement date being 1st December, 2009. Thus, though the exparte application was filed on 15th April, 2009, the learned Counsel adopted their respective addresses on 11th March, 2010 and judgment was delivered on 22nd day of March, 2010 during the operation of the 2009 Rules (supra).
Paragraphs 3(a)-(b), (c), (f) and (g) of the Fundamental Rights (Enforcement Procedure) Rules, 2009 are very instructive in the determination of the issues in controversy in this appeal. They are couched in the preamble as follows:
“3 The overriding objective of these Rules are as follows:
(a) The Constitution, especially Chapter IV, as well as the African Charter, shall be expansively and purposely interpreted and applied, with a view to advancing and realizing the rights and freedom contained in them and affording the protections intended by them.
(b) For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court shall respect municipal, regional and international bills of rights cited to it or brought to its attention or of which the Court is aware, whether these bills constitute instruments in themselves or form parts of larger documents like constitutions. Such bills include:
(i) The African Charter on Human and People’s Rights and other instruments (including protocols) in the African regional human rights system.
(ii) The Universal Declaration of Human Rights and other instruments (including protocols) in the United Nations Human rights system.
(c) For the purpose of advancing but never for the purpose of restricting the applicant’s right and freedoms, the Court may make consequential orders as may be just and expedient
(d) xxxxxxxxxxxxxxxxxxxxxxxx
(e) xxxxxxxxxxxxxxxxxxxxxxxx
(f) The court shall in a manner calculated to advance Nigerian democracy, good governance, human rights and culture, pursue the speedy and efficient enforcement and realization of human rights.
(g) Human rights suits shall be given priority in deserving cases. Where there is any question as to the liberty of the applicant or any person, the case shall be treated as an emergency.”
In Attorney-General vs. H.R.H. prince Ernest Agustus of Hanover (1957) A.C. 456 at 467-469 Lord Normand explained the purport of a preamble:
“When there is a preamble it is generally in its recitals that the mischief to be remedied and the scope of the Act are described. It is therefore clearly permissible to have recourse to it as an aid to construing the enacting provisions…”
see also chairman, L.E.D.B. vs. Said (1968) NMLR 183/189; Okeke vs. Attorney-General of Anambra State (1992) 1 NWLR (pt. 215) 60 at 83 paragraph “B”-“C”.
The intention of the Chief Justice of Nigeria is for courts entertaining questions pertaining to the infringement or breach of fundamental rights to pursue the matter with speed but with efficiency. Where there is any question as to the liberty of the applicant or any person, the case is to be treated as if it is an emergency that requires to be dealt with timeously, or with dispatch as the military would put it. An applicant seeking to enforce his or her fundamental rights is no longer required under the 2009 Rules (supra) to seek leave of the court before bringing or instituting the substantive proceedings. See Order 2 rule 2 of the 2009 Rules (supra). But the application must be supported with an affidavit and a written address. Order 2 rule 6 of the 2009 Rules provides that, “where the respondent intends to oppose the application, he shall file his written address within 5 days of the service on him of such application and may accompany it with a counter-affidavit.” A respondent has the discretion under the 2009 Rules to accompany the written address with a counter-affidavit. The mandatory requirement is that the written address must be filed within five days of service of the substantive application.
Order 2 rule 7 of the 2009 Rules (supra) further provides that, “The applicant may on being served with the Respondent’s written address, file and serve an address on points of law within 5 days of being served, and may accompany it with a further affidavit.” A counter-affidavit is useless where the applicant’s affidavit is self-contradictory, lacking in merit or credibility. See Royal Exchange Assurance vs. Aswani iles Industries Ltd. (1992) 2 SCNJ (Pt.2) 346 at 355; Bank of Baroda vs. Mercantile Bank Ltd. (1987) 3 NWLR (pt.60) 255 at 240 & 242, and the unreported judgment of the court of Appeal, Calabar Division delivered on Thursday, 17th day of January, 2013 in suit No.CA/C/108/2010 viz, Mr. Oblechor Lifu Agu & ors. vs. Hon. Joseph Idu at page 14 per Tur, JCA.
The general practice before 1st December, 2009 had been that a party raising a preliminary objection to the hearing of an application or suit usually filed an affidavit in support of that objection. See Nsirim vs. Nsirim (1990) 5 SCNJ 174 at 182; Ajide vs. Kelani (1985) 16 NSCC 1296.
But if the objection is anchored exclusively or purely on points of law there was no need to file an affidavit. See Attorney-General of the Federation vs. ANPP (2004) FWLR (Pt.190) 1458 at 1478. The provisions of Order 12 rules 1-5 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 however enjoins the application to be heard or written addresses.
Order 12 rules 1-5 of the 2009 Rules (supra) lays emphasis on the content and quality of the arguments of learned Counsel in their written addresses. However, elaborate provisions have been made under the 2009 Rules (supra) how or in what manner or circumstances a Respondent may challenge the Court’s jurisdiction not to hear the substantive application for the enforcement of fundamental rights of an aggrieved person. This is provided under Order 1 rules 1-6 of the Rules to wit:
“1. Where the Respondent is challenging the court’s jurisdiction to hear the application, he may apply to the Court for an order striking out the suit or setting aside the proceedings.
2. The Respondent’s Notice of preliminary Objection must be filed along with the counter-affidavit to the main application.
3. Where the Respondent elect, not to file a counter-affidavit to the main application, the Court shall presume that the Respondent has accepted the facts as presented by the Appellant.
4. On the date of hearing, the preliminary objection shall be heard along with the substantive application.
5. The Court after hearing the application may make any of the following orders:
(a) Striking out the application for want of jurisdiction; or
b) Setting aside the service of the originating application.
6. Where the Court does not decline jurisdiction, the Court shall go ahead to give its Ruling on the substantive application.”
There was no such corresponding requirement under the 1979 or 1999 Rules (supra). Under the 2009 Rules (supra) once the Respondents’ preliminary objection is on the grounds of lack of jurisdiction, he has no choice but to file a counter-affidavit and a written address to the main application. If the plea is upheld, the substantive application will be struck out. But if the plea is over-ruled the learned trial Judge will proceed to deliver judgment. Order 15 rules 2-4 of the 2009 Rules (supra) recognized that there had to be a transitional period from the 1999 Rules (supra) to the 2009 Rules (supra) hence the Chief Justice provided in the 2009 Rules (supra) as follows:
“2. From the commencement of these Rules, pending Human Rights applications commenced under the 1979 Rules shall not be defeated in whole or in part, or suffer any judicial censure, or be struck out or prejudicial, or be adjourned or dismissed, for failure to comply with these Rules provided the applications are in substantial compliance with the Rules.
3. Such pending Human Rights applications may continue to be heard and determined as though they have been brought under these Rules.
4. Where in the course of any Human Rights proceedings, any situation arise for which there is or appears to be no adequate provisions in these Rules, the Civil Procedure Rules of the Court for the time being in force shall apply.”
Order 15 rule 2 of the 2009 Rules (supra) provides that Human Rights Applications pending before 1st December, 2009 shall not be defeated in whole or in part, or suffer any judicial censure, be struck out, prejudiced, adjourned or dismissed, for failure to comply with any provisions of the 2009 Rules. Though the preliminary objection was founded on lack of jurisdiction, the failure of the appellants to have filed a counter affidavit supported by a written address was not fatal as held by the learned trial Judge. In other words from the commencement of the 2009 Rules supra, namely, 1st December, 2009 a court is not to strike out, adjourn or dismiss, etc, pending applications or preliminary objections simply because the respondents had not complied with any of the provisions of the 2009 Rules. The learned trial judge should have continued with the hearing of the proceedings with or without a counter-affidavit based on the written addressed. The demand that a counter-affidavit should have been filed in compliance with the provisions of Order 8 rules 2-6 of the 2009 Rules (supra) was not feasible. That would have entailed an adjournment for the parties to restart the processes so as to conform with the 2009 Rules (supra). That is precisely what the learned Chief Justice of Nigeria sought to avoid by virtue of Order 15 rules 2-3 of the 2009 Rules (supra).
To worsen matters, when the learned counsel to the parties adopted their respective briefs of argument on 11th March, 2010 his Lordship adjourned to 22nd March, 2010 for “Decision on the preliminary Objection”
A trial Court should, when granting an adjournment indicate clearly whether it is for ruling, judgment or both. This will notify the parties what to expect on the adjourned date. The learned trial Judge made it clear to the counsel or the parties that he was adjourning to rule on the preliminary objection but not to deliver judgment if the objection failed. If he had done so the parties would have been opportuned to move the motion on notice and adopt their written addresses. It is not enough to file an application before a Court. The applicant has to move the hand of the trial Judge before he can be granted or refused relief. See Nsirim vs. Nsirim supra and Ajide vs. Kelani supra.
A preliminary objection is necessary to prevent a Court from proceeding to consider the merit of the controversies submitted for adjudication. At whatever stage the objecting party perceives that the Court has no jurisdiction to entertain the controversy, a preliminary objection is the remedy. The preliminary objection avoids the parties embarking on an unnecessary or protracted trial, incurring untowards cost, waste of time and energy if the exercise could have been timeously avoided. The need to file a motion or an application setting forth the grounds upon which objection is raised is to avoid surprises but give the other party a fair hearing. The adverse party should be allowed to respond particularly if the success of the objection will lead to the termination of the substantive proceedings. See Adejumo vs. Governor of Lagos state (1970) 1 All NLR 183/ and Ajide vs. Kelani (supra). A court should take a preliminary objection that if upheld will determine the whole litigation or dispense with further trial or some issues, particularly where the facts are not in dispute. See Foko & Ors. vs. Foko & ors. (1968) NMLR 441; Jang vs. INEC & Ors. (2004) All FWLR (Pt.200) 1545 at 1573; Nwajuebo vs. Alabua (1974) 1 All NLR 445 and Misini vs. Balogun (1968) 1 All NLR 318. In my humble opinion, a ruling on the preliminary objection having been dismissed, the learned trial Judge should have asked the Respondents to move the substantive application. Alternatively, his Lordship could have adjourned for the appellants or their counsel to file the necessary counter-affidavit to enable them to be heard on the merit. The preliminary objection merely arrested the hearing of the substantive application and no more. A Court is bound to dispose all preliminary objections before proceeding with the substantive application or suit. See Olosunde & Ors. vs. Chief Eyialegan & Ors. (2005) All FWLR (Pt.242) 503 at 510; Ogoja Local Government vs. Offoboche (1996) 7 NWLR (Pt.458) 48; Onyemeh vs. Egbuchulam (1996) 5 NWLR (Pt.448) 255; Ohaneku vs. Eheruo (2002) 1 NWLR (Pt.748) 301 at 309; Ogbanu vs. Oti (2000) 8 NWLR (pt.670) 582 at 590. I hold that the appellants were denied fair hearing. This led to a miscarriage of justice. The desire to hurriedly dispense justice may at times lead to doing cloistered justice. Speedy trial should not infringe any of the golden principles of fair hearing.
I resolve issue one in favour of the appellants.
ISSUES TWO (2):
The learned Counsel to the appellants argument on issue two is that since the learned trial Judge had granted leave for the Respondents to enforce their fundamental rights on 22nd April, 2009 the failure to hear the substantive application within 14 days as stipulated under Order 2 rule 1(2) of the Fundamental Rights (Enforcement Procedure) Rules, 2009, same having suffered protracted adjournments for over five months, was fatal to the judgment delivered on 22nd day of March , 2010 incompetent. Learned Counsel cited Ezechukwu vs. Maduke (1997) 8 NWLR (Pt.518) 635 at 671 as authority for this argument. Counsel contended that with the coming into operation of the 2009 Rules the lifeless motion on Notice could have been reactivated and brought back to life for the purpose of hearing. Nevertheless, this was aborted by the learned trial Judge by the delivery of the judgment in favour of the Respondents. Counsel urged this Court to resolve issue two in favour of the appellants.
Learned Counsel to the respondents argued on the other hand that at the time the judgment was delivered the motion on notice was alive and properly before the Court. Counsel argued that what the 1979 Rules (supra) required was for the entry of the substantive application for hearing within 14 days of the grant of the exparte application, citing Boniface Ezechukwu vs. Peter Maduke (supra) at 671 and Paulinus Nwaeze vs. Commissioner of Police, Enugu State & Ors. (2001) 1 CHR 449 at 450 and 455. Counsel urged that issue two should be resolved against the appellants.
Order 2 rule 1(2) of the Fundamental Rights (Enforcement Procedure) Rules 1979 under which the Respondents sought and were granted leave to enforce their fundamental rights provides as follows:
“(2) The motion or summons must be entered for hearing within fourteen days after leave has been granted.”
The entry of causes and matters for hearing is the duty or business of the learned trial Judge. The judge may at times direct the Registrar or clerk of Court as the case may be, to enter the cause or matter for hearing and determination. What the Rules enjoin is that upon grant of leave, the substantive application must be entered for hearing by the Judge within 14 days so that the application will be dealt with expeditiously. The substantive application would have lapsed by effluxion of time if the learned trial Judge had not listed it for hearing within 14 days upon grant of leave. The protracted adjournments as shown in the records were mostly due to the strike by the staff of the state judiciary under the aberration “JUSUN”. This was never the making of the learned trial Judge, the parties or their respective Counsel.
I resolve issue two against the appellants.
ISSUE THREE (3):
The complaint on issue three by the appellants is that the learned trial Judge awarded reliefs not asked for nor proved. That the Respondents had claimed the sum of N5,000,000.00 as exemplary damages. The learned trial Judge however awarded One Million Naira with costs assessed at N20,000.00 against the appellants. Counsel cited Isenalumher vs. Joyce Amadin (2001) 1 CHR 458 at 459; Okonkwo vs. Ogbogu (1990) 3 NWLR (Pt.—) 580 and Odofu vs. Attorney-General of the Federation (2000) 2 HRLRN page 82 at 86. Counsel urged that issue three be resolved in favour of the appellants.
The learned Counsel to the Respondents argued that the claim by the Respondents was founded on exemplary damages. The sum claimed was N5,000,000.00. The learned trial Judge awarded N1,000,000.00 because the appellants had not filed a counter-affidavit in respect of the substantive application. Learned Counsel contended that the Respondents proved their case before the learned trial Judge made the awards. The discretion exercised by the learned trial Judge should not be interfered with by this court.
Where a person’s legal right has been infringed or invaded, and injunctive reliefs are claimed and proved at the trial, the successful party is entitled to damages. And cost of the litigation. In McGregor on Damages, 14th edition page 5 paragraphs 1 and 2, the learned authors have written that:
‘DAMAGES are the pecuniary compensation, obtainable by success in an action, for a wrong which is either a tort or a breach of contract, the compensation being in the form of a lump sum which is awarded unconditionally and is generally, but now not necessarily, expressed in English currency.”
At page 6 paragraph 7 of McGregor On Damages (supra) the learned authors further explained that:
‘Before damages can be recovered in an action there must be a wrong committed, whether the wrong be a tort or a breach of contract Even if a loss has been incurred, no damages can be awarded in the absence of a wrong: it is damnum sine injuria. Therefore the preliminary question to be answered, before any issue of damages can arise, is whether a wrong has been committed…”
This Court cannot answer the question whether the appellants committed a wrong against the Respondents and were entitled to an award of the reliefs claimed or not. This is because the appellants, as I held when considering issue one, were not given fair hearing. In that wise it will be premature for this Court to come to the conclusion that a wrong had been committed or not for which they are to damnify the Respondents where the learned trial Judge breached the right to fair hearing, the Respondents are not entitled to any award, and the cost of the litigation. I resolve issue three in favour of the appellants. I set aside the entire reliefs granted the Respondents.
On the whole this appeal succeeds. Parties to bear their costs.
MOHAMMED LAWAL GARBA, J.C.A.: After reading the draft of the lead judgment by my learned brother, J. T. Tur, JCA, in this appeal, I found the views expressed on the issues for determination in the appeal are the same with mine. I want to emphasise that the High Court by adjourning the objection to the motion on notice for ruling but delivering judgment on the adjourned date after the ruling, had clearly shut out the parties to the motion thereby denying them the opportunity to be heard on it before a decision one way or the other was delivered in the case. It is the duty of a court to hear and determine all pending applications before it before proceeding to deliver judgment in a case except an application was agreed to by the parties and directed by the court to await and abide by the judgment in the case. See Nalsa & Team Associate v NNPC (1991) 1 NWLR (212) 652; F.C.M.B. Ltd. v. Abiola & Sons Bottling Co. Ltd. (1991) l NWLR (165) 14; Newswatch Comm. Ltd. v. Attah (2006) ALL FWLR (318) 580. By the failure to hear the pending motion before delivering judgment, the High Court denied the parties therein the right to fair hearing which thus vitiate not only the judgment delivered but the whole proceeding of which it was only a product. See Newswatch Comm. Ltd. v Attah (supra); Kosebemi v Alima (2006) ALL FWLR (285) 700.
For all the fuller reasons set out in the lead judgment which I adopt as well as the above, I too find merit in the appeal and allow it in the terms set out therein.
UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Joseph Tine Tur, JCA. The Appellants in this case had complained that the trial judge did not accord them a fair hearing. The trial judge did not allow the Appellants file their defence but proceeded to deliver its judgment. The trial Judge breached one of the twin pillars of natural justice i.e. audi alteram partem.
It is trite law that once there is a breach of fair hearing, the whole proceedings in the course of which the breach occurred, and the decision arrived of by the court becomes a nullity. ANPP vs. INEC (2004) 7 NWLR pt.871 page 16, All Peoples Party vs. Ogunsola (2002) 5 NWLR pt.761 page 484.
The right to fair hearing is a very essential right for a person to secure justice. The Appellants’ right of fair hearing was breached in this trial. For this and the more robust reasoning and conclusions of my learned brother in the lead judgment, I too must allow this appeal.
I abide by of the consequential orders in the lead judgment.
Appearances
Ita E. Aye, Ese.For Appellant
AND
I. N. Echendu, Esq.For Respondent
