GALLAHER LIMITED & ANOR v. BRITISH AMERICAN TOBACCO (NIGERIA) LIMITED & ORS
(2014)LCN/7561(CA)
In The Court of Appeal of Nigeria
On Thursday, the 27th day of November, 2014
CA/IL/6/2014(R)
RATIO
CONSTITUTIONAL LAW: THE FUNDAMENTAL RIGHT TO FAIR HEARING; THE PROVISION OF THE CONSTITUTION FOR THE RIGHT TO FAIR HEARING
Thus Section 36(1) of the 1999 Constitution reads-:
“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 in such manner as to secure its independence and impartiality.”
Sec 36(2)(a) of the 1999 constitution reads-:
“Provides for an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person.” per. MUSA HASSAN ALKALI, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
MUSA HASSAN ALKALI Justice of The Court of Appeal of Nigeria
Between
1. GALLAHER LIMITED
2. HABANERA LIMITED Appellant(s)
AND
1. BRITISH AMERICAN TOBACCO (NIG) LIMITED
2. BENSON & HEDGES (OVERSEAS)
3. INTERNATIONAL TOBACCO COMPANY PLC Respondent(s)
MUSA HASSAN ALKALI, J.C.A. (Delivering the Lead Ruling): The motion on notice brought pursuant to Order 7 Rule 1 and Order 20 Rule 2 of the Court of Appeal Rules 2011 filed on 11th April, 2014 by the 3rd respondent/applicant prayed for the following orders:-
1. AN ORDER granting leave to the Respondent/Applicant to argue this Motion on Notice along with the Respondent/Applicant’s Brief of Argument at the hearing of this appeal.
2. AN ORDER directing a departure from the provisions of Order 18 Rule 4 of the Rules of this Honourable Court in order to enable the Respondent/Applicant file and serve its Brief of Argument conceding all the points argued in the Appellant’s Brief of Argument.
3. AN ORDER of this Honourable court deeming the arguments contained in the Respondent/Applicant’s Brief of Argument conceding all the points argued in the Appellant’s Brief of Argument as having been properly argued.
4. AND FOR SUCH further or other orders as this Honourable Court may deem fit to make in the circumstances of the case.
An affidavit of 9 paragraphs sworn to at the Court of Appeal Registry Ilorin containing the averments of one Sunday Onuegbu Legal Practitioner of 9/11 Catholic Mission Street, Lagos was filed in support of this application. And attached to it are the following:-
1. 6 grounds filed upon which this application was brought.
2. Judgment of the Federal High Court Ilorin.
The 1st and 2nd respondents, counsel did not signify any disagreement with the said application, and in that respect, no counter-affidavit was filed by them.
Learned Counsel Olaseni Oyefeso Counsel to the respondent/applicant moved the motion on the 28th October 2014 and cited Order 18 Rule 4(2) of the Court of Appeal Rules 2011.
“the Respondent’s Brief shall answer all the material points of substance contained in the Appellant’s Brief and contain all points raised therein which the Respond.ent wishes to concede as well as reasons, why the appeal ought to be dismissed.”
Learned Counsel Olaseni Oyefeso confirmed relying on order 20 Rule 2 thus:-
“The court may direct a departure from these Rules in anywhere this is required in the interest of Justice.”
He further cited the Supreme Court decision in the case of
1. Alhaji Muhammadu Maigari Dingyadi
2. Democratic Peoples Party (DPP)
Vs
1. Independent National Electoral Commission
2. Aliyu Magatakarda Wammako
3. Peoples Democratic Party (PDP) 2010 18 NWLR part 124 page 1 at 145 paragraph D – E
Dayo Ayoola John learned counsel to the 1st and 2nd respondents reacted and strongly opposed the application orally in an open court. He emphasized that Order 18 Rule 4(2) was the only order that the 3rd respondent/appellant counsel wanted. He further argued and cited two cases to support objecting of the application.
1. The decision of the Court of Appeal Ibadan Division
1. Chief Joseph Olagunju Olaniyan
2. Chief Joshua Olatunji
Vs
1. Oba Gabriel Oyekanmi Adeniyi
2. Attorney-General and. Commissioner for Justice, Osun State
(2007) 3 NWLR parts 1020-1022 page 1 at 15 paragraph D-G.
2.The decision of the Court of Appeal Owerri Division.
Njaba Local Government Council
Vs
1. Uchendu Vitalis Chigozie
2. Imo State Independent Electoral Commission
3. Attorney General of Imo State
(2010) 16 NWLR part 1218 1220 page 166 at 192
He urged the court to reject the application.
Learned counsel Olaseni Oyefeso, in his re-examination told the court that counsel to the 1st and 2nd respondents has not filed any application in respect of the Notion on Notice.
I have gone through all the cited cases brought before us by both counsel. On the 1st case cited by the learned counsel Olaseni Oyefeso Alhaji Muhammadu Maigari Dingyadi & 1 other Vs. Independent National Electoral Commission & others Supra (2010) 18 NWLR Part 1224 at page 1 at paragraph D. The Supreme Court talked on departure to Order 7 Rule 7.
“The connotation of departure from the rules to my mind is being granted the indulgence of waiver of strict adherence to the Rules of court in the interest of Justice.”
The case cited covered the position of Order 20 Rule 2 of the Court of Appeal Rules 2011.
It reads thus-:
“The Court may direct a departure from these Rules in anywhere this is required in the interest of justice.”
On the first case cited by the 1st and 2nd Respondent’s counsel. Learned counsel Dayo Ayoola John strongly opposed the application by citing Chief Joseph Olagunju Olaniyan and 1 other Vs. Oba Gabriel Oyekanmi and. Other (2007) NWLR parts 1020-1022 page 1 at page 15 paragraph E-G. Nnaemeka Agu, JSC maintained a respondent’s Brief has two broad functions. It is refutatory as it answers specific points that the appellant’s brief is attacking. It is supportive in that it advances arguments in support of the reasoning in the judgment appealed from. The 2nd respondent’s brief herein is a frontal attack on the judgment of the lower court. However points raised in this appeal shall be considered on merit.”
This decision is self explanatory and speaks itself without any comment to be made. On the second case cited by Learned Dayo Ayoola John thus:-
Njoba Local Government Council Vs. Uchendu ,Vitalis Chigozie and 2 others (2010) 16 NWLR part 1218-1220 page 166 at 192-193. This case too also speaks itself as self explanatory. It has the same meaning and effect with the above case supra.
The Learned counsel to the 1st and 2nd respondents Dayo Ayoola John deliberately ignored his comment to respond on the application which was effectively served on him. Thus he refused to file counter-affidavit to indicate his acceptance or objection to the said application. Failure to respond to the said application formally by way of counter-affidavit showed impliedly that he accepted or agreed with the motion already filed by the 3rd respondent/applicant counsel. He later argued and even cited two cases unnecessarily. I therefore rest resolution based on fair hearing which affects fundamental issue constitutionally. Thus Section 36(1) of the 1999 Constitution reads-:
“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 in such manner as to secure its independence and impartiality.”
Sec 36(2)(a) of the 1999 constitution reads-:
“Provides for an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person.”
The above constitutional provisions has to be adhered to.
My firm view is that the application filed on 11th April,2014 by the 3rd respondent/applicant ought to be granted in the interest of Justice. Application is hereby granted.
I make order directing a departure from the provisions of Order 18 Rule 4 of the Court of Appeal Rules, 2011.
The Respondent/Applicant is hereby granted leave to file and serve its brief of argument conceding alt the points argued in the Appellant’s brief of argument.
There shall be no order as to cost.
DR. HUSSEIN MUKHTAR, J.C.A.: I was privileged to read in draft the ruling just rendered by my learned brother, Musa Hassan Alkali, J.C.A. I am in complete agreement with him that the prayers in the instant application qualify as grantable according to the facts and circumstances of this case. I accordingly grant same as prayed.
I subscribe to all the consequential orders made in the ruling.
CHIDI NWAOMA UWA, J.C.A.: I have read before now the Ruling delivered by my learned brother, MUSA HASSAN ALKALI, JCA. I agree with the conclusion arrived at in granting the application. I abide by the order made therein as to costs.
Appearances
M.S. Akindele Counsel to the AppellantsFor Appellant
AND
Dayo Ayoola John Counsel to the 1st and 2nd Respondents
Olasenji Oyefeso Counsel to the Respondent/ApplicantFor Respondent
