JOHNSON O. ESEZOOBO v. DR. MOHAMMED ABA AJI & ORS
(2016)LCN/9342(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 13th day of July, 2016
CA/L/175/2008
RATIO
CONSTITUTIONAL LAW: THE RIGHT OF A LITIGANT TO REPRESENT HIMSELF
There is no rule of law that prescribes that a litigant cannot conduct his own case before the Court without the services of a legal practitioner. The Appellant was compelled to get a lawyer who led him in evidence in chief and thereafter he continued to prosecute his case but was met with stiff resistance from the trial judge who insisted that having testified in his own case could not appear to conduct his case himself. Instructively, Supreme Court stated the correct position of the law in ATAKE v. AFEJUKU (1994) LPELR-585 (SC) while considering the constitutional question as to whether a retired judicial officer who cannot afford the services of a counsel should be precluded from appearing before the Court to answer to the charge and offer his defence, held, per BELLO, CJN at page 17, para. A – C held:
“A litigant, whether a legal practitioner or a layman, who conducts his case in person has the right like any legal practitioner who appeared and acts for a client to cite authorities to advance his case…”
On a similar tone, BELGORE, JSC, held at page 21, paras. A-C, thus:
“My answer to the question is that a judicial officer ceasing to hold office who intending to exercise his constitutional right defending himself and prosecute his case whether in civil and criminal matter is not a legal practitioner before that Court or Tribunal, he is a party simpliciter. He does not wear wig or robe; he does not sit in the well of the Court reserved for legal practitioners i.e. the bar and to all intent and purposes remain a litigant simpliciter.” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
CONSTITUTIONAL LAW: THE PRINCIPLE OF FAIR HEARING
The Apex Court, per NNA-EMEKA AGU, JSC, in BABA v. N.C.A.T.C. (1991) 5 NWLR (Pt. 192) 388, (1991) LPELR-6692 (SC), 34 to 36, paras. E – C, enunciated on the rudiments of fair hearing when he held thus:
“In a judicial or quasi-judicial body, a hearing, in order to be fair must include the right of the person to be affected:
1) to be present all through the proceedings and hear all the evidence against him;
2) to cross-examine or otherwise confront or contradict all witness that testify against him;
3) to have read before him all the documents tendered in evidence at the hearing;
4) to have disclosed to him the nature of all relevant material evidence, including documentary and real evidence, prejudicial the party, save in recognized exceptions;
5) to know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence; and
6) to give evidence by himself, call witnesses, if he likes and make oral submissions either personally or through a counsel of his choice.
“There are certain basic criteria and attributes of fair hearing, some of which are relevant in this case.
(i) that the Court shall hear both sides not only in the case but also in all material issues in the case before reaching a decision which may be prejudicial to any party in the case. See Sheldon v. Bromfield Justices (1964) 2 Q.B. 573, at p. 578;
(ii) that the Court or Tribunal shall give equal treatment, opportunity, and consideration to all concerned. See on this: Adigun v. Attorney-General, Oyo State & Ors (1987) 1 NWLR (Pt. 873) 678.
(iii) that the proceedings shall be held in public and all concerned shall have access to and be informed of such place of public hearing and
(iv) that having regard to all the circumstances in every material decision in this case, Justice must not only be done but must manifest and undoubtedly be seen to have been done; R v. Sussex Justices, Ex-parte McCarthy (1924) 1 K.B. 256, at p. 259; Deduwa & Ors v. Okorodudu (1979) 10 S.C. 239.”
Also, in OKAFOR & ORS v. A.G. & COMMISSIONER FOR JUSTICE & ORS [1991] 6 NWLR (Pt. 200) 659, the Court, per KARIBI-WHYTE, JSC, held that “the true test of fair hearing is the impression of a reasonable person who was present at the trial whether from his observation, justice has been done in the case.” Similar rhetoric was expressed in N.A.B. KOTOYE v. C.B.N. [1989] 1 NWLR (Pt. 98) 419, 444 where the Supreme Court held that:
“Clearly whenever the need arises for the determination of the civil rights and obligations of every Nigerian, this provision guarantees to such a person a fair hearing within a reasonable time. Fair hearing has been interpreted by the Courts to be synonymous with fair trial and as implying that every reasonable and fair minded observer who watches the proceedings should be able to come to the conclusion that the Court or other Tribunal has been fair to all the parties concerned…” See also VICTINO FIXED POOLS LTD v. JOSEPH OJO & ORS [2010] 8 NWLR (Pt. 1197) 486.
On the consequence of non-compliance with the principle of fair hearing, the Court in A.G. RIVERS v. UDE [2006] 17 NWLR [Pt. 1008] 436, held:
“The right to fair hearing is a fundamental constitutional right guaranteed by the Constitution of the Federal Republic of Nigeria 1960, 1979 and 1999, and a breach of it in trials or adjudication vitiates the proceedings rendering the same null and void and of no effect. Any judgment which is given without due compliance and which has breached fundamental right of fair hearing is a nullity and is capable of being set aside either by the Court that gave it or by an appellate Court….” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
JOHNSON O. ESEZOOBO Appellant(s)
AND
1. DR. MOHAMMED ABA AJI
2. MRS. P. A. BASSI
3. NIGERIA SOCIAL INSURANCE TRUST FUND Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of ALIYU, J. of the Federal High Court Lagos Division delivered on 6th day of February, 2007. The suit was originally commenced by an Originating Summons dated 19th day of December, 2001 filed on 13th March 2002. It was subsequently converted to a writ of summons following a successful Preliminary objection of Respondent’s counsel. The Respondents filed a Joint Statement of Defense to which Appellant filed a Reply. During trial, the Appellant filed two separate motions on 26th April, 2005 and 25th July, 2006 respectively. Upon conclusion of trial, judgment was given in favour of the Respondent. Dissatisfied with the judgment the Appellant filed a Notice of Appeal of twelve (12) grounds.
The Appellant’s brief dated 20th November, 2015 was filed on 13th April, 2016, 5th May, 2016 and reply brief dated 29th April 2011 filed 5th May, 2011 deemed same was settled by Johnson O. Esezoobo, Esq. of J. Odion Esezoobo & Co. He settled nine (9) issues for determination this appeal as follows:
1. Whether the learned
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trial judge appreciated the Appellant’s case and was not wrong when he held that there was no breach of contract or that the Appellant’s “case failed totally and accordingly” dismissed the case. This issue relates to ground 1, 5, and 8 of the grounds of appeal.
2. Whether the learned trial judge properly evaluated the evidence and was right when he relied on the oral evidence of DW1 who testified on behalf of the 3rd Respondent only in purported proof of averments of the 1st defendant who neither appeared nor gave evidence for himself. This relates to ground 2 of the grounds of appeal.
3. Whether the learned trial judge was right when he held that the Appellant’s employment with the 3rd Respondent was not protected by Statute or is not with statutory flavour but one of common law master and servant. This issue relates to ground 3 of the grounds of appeal.
4. Whether the learned trial judge was right when he relied on a portion of Exhibit A10 and concluded that the Plaintiff acted against the interest of his employers and in breach of his contract of employment. This relates to ground 4 of the grounds of appeal.
5. Whether the learned trial
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judge was right in disallowing the Appellant from representing himself as well as in discountenancing his written address and if yes whether the learned trial judge was not biased as much as denied the Appellant a fair hearing in breach of his judicial oath. This issue relates to grounds 6 and 12 of the grounds of appeal.
6. Whether the learned trial judge did not misdirect himself and wrongly relied on and misapplied the authorities of IMOLOAME V. W.A.E.C. (1992) 9 NWLR (Pt. 265) 303, FAKUADE v. O.A.U.T.H.M.B. (1993) 5 NWLR (Pt. 290) 47, OKOMU OIL PLAM CO. LTD v. ISIERHIENHEN (2001) 6 NWLR (Pt. 710) 660 IDONIBOYE-OBU v. N.N.P.C. (2003) 2 NWLR (Pt. 805) 58 AT 62 AND IDERIMA v. R.S.C.S.C. (2005) 16 NWLR (Pt. 951) 379 in deciding the case against the Appellant. This issue relates to ground 7 of the grounds of appeal.
7. Whether the learned trial judge did not misdirect himself in law when he held that the 1st Respondent “is the supervisory authority of staff” of the 3rd Respondent and in presuming delegation of the 3rd Respondent’s power of discipline over the Appellant to the 1st Respondent. This relates to ground 9 of the grounds of Appeal.
8.
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Whether the whole judgment is not perverse and against the weight of evidence, as such unreasonable and occasioned a miscarriage of justice. This relates to ground 10 of the grounds of Appeal.
9. Whether the learned trial judge did not misdirect himself in law and facts when he held that “it will lead to absurdity to interpret the pleasure president as meaning the president of Nigeria must personally terminate or authorize the determination of the plaintiffs appointment”. This relates to ground 11 of the grounds of Appeal.
The 1st to 3rd Respondents’ brief was dated 29th November, 2010 and filed on 17th January, 2011 but deemed 21st April, 2011. It was settled by Alade Babatunde Kasumu Esq., Prof. A. B. Kasumu’s Chambers wherein he nominated four (4) issues for determination as follows:
1. “Whether the trial judge was right in holding that the employment of the Appellant with the 3rd Respondent is not protected by Statute and not of statutory flavour (Distilled from Ground three)
?2. Whether the trial judge failed to properly evaluate the documentary evidence tendered by the Appellant in coming to the conclusion that the Appellant acted
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against the interest of his employer and thus in breach of his contract of employment [Distilled from Ground nine]
3. Whether the 3rd Respondent had the power to discipline the Appellant and delegate such disciplinary power. [Distilled from Ground nine]
4. Whether the trial judge violated the Appellant’s constitutional right to fair hearing when she refused to allow the adoption of the two written addresses filed on behalf of the plaintiff/Appellant in the lower Court. [Distilled from Ground six]”
The Appellant formulated nine (9) issues while the Respondent formulated four (4) issues for determination. I find that the Respondent’s four (4) issues are subsumed in the nine (9) issues of the Appellant. Some of the Appellant’s issues are intertwined. However having observed that issue five (5) of the Appellant’s issue bothers on breach of fair hearing, a constitutional issue, it shall be determined first and consequently, I shall re-arrange the issues accordingly. Issue five (5) shall be considered as Issue one (1); issues one (1), three (3), six (6), seven (7) and nine (9) as issue two (2); while Issues two (2), four (4), and (8) as issue
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three. However, I shall reproduce argument of Respondents responses to the Appellant’s issues where applicable.
ISSUE 1
“Whether the learned trial judge was right in disallowing the Appellant from representing himself as well as in discountenancing his written address and if yes whether the learned trial judge was not biased as much as denied the Appellant a fair hearing in breach of his judicial oath”
Submitting on this issue, Appellant referred to Section 36 (1) of 1999 Constitution on fair hearing as well as Order 6 Rule 10 of Federal High Court Civil Procedure Rules 2000; SEKONI v. U.T.C. NIG (2006) 8 NWLR (Pt. 982) 283 AT 301; UKWENI v. GOVT. CROSS RIVERS STATE (2008) 3 NWLR (Pt. 1073) 33; FAWEHINMI v. N.B.A. No. 1 (1989) 2 NWLR (Pt. 105) 494; ATAKE v. AFEJUKU (1994) 9 NWLR (Pt. 368) 379 to submit that a litigant/lawyer conducting his case personally and had given evidence does not rob citizen his constitutional right to conduct his case personally and that the learned trial judge erred when he refused defence counsel’s withdrawal of objection to the Appellant’s personal representation. He submitted that the learned trial judge
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disallowed the Appellant from moving his motion and struck it out for want of diligent prosecution while he was in Court. He also argued that the lower Court erred in violating the Appellant’s right to fair hearing by disallowing him the right of personal representation to personally conduct his case.
Appellant further contended that a party had a right to address the Court and no reason can justify the refusal or denial of that right and that by continuing to pursue the matter and refusing the Appellant right of audience as evidence from the record, the learned trial judge was operating at his whims and caprices as per ISYAKU v. MASTER [2003] 5 NWLR (Pt. 814) 443 at 464-465. It is the further submission of counsel that the Nigerian law is that a party has a right to address the Court and no reason can justify the refusal or denial of that right vide DONATUS NDU v. THE STATE [1990] 7 NWLR (Pt. 164) 350. He referred to pages 379 to 380 of the record of proceedings leading to the discountenancing of Appellant’s address, that the reason for discountenancing the addresses, when both the Appellant and his counsel he was forced to retain were present in
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Court is not in the interest of justice and fair hearing and that the conduct of the trial was hostile and intimidating. He further argued that contrary to the decision of the trial judge that the defence counsel should “file and serve”, it is elementary that where the defence calls evidence, the defence addresses first, and also that from all processes before the Court, the Appellant personally signed and filed all his processes. He argued that for the learned trial judge to say that the addresses were not adopted is a misstatement as the record shows that the trial judge who had driven the Appellant into calling in Mr. Otokhina of counsel tried to dictate how the case should be conducted, which counsel refused as both documents were properly before the Court as one and relevant to the Appellant’s case. He argued that there is no law or rule of practice that disallows a litigant from signing and filing his processes in Court personally and that it is not sufficient to discountenance the addresses and not consider it. He cited ISYAKU v. MASTER (supra) at pages 469-470; OLUMESAN v. OGUNDEPO [1996] 2 NWLR (Pt. 433) 628, per OGBWUEGBU, JSC. Counsel referred to
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both facts borne out of the record and others that were not, before finally contending that the trial judge contradicted himself and even said things to justify bare face deprivation of a litigant’s right to fair hearing, which is a serious matter.
In response, Respondents’ counsel relied heavily on proceedings of the trial Court of 29th November, 2006 at pages 354 to 355 of the record to submit that the Appellant was uncharitable to the trial judge by alleging that he was denied fair hearing when not allowed to adopt his written address. Counsel submits that the Appellant was given every opportunity to adopt one of the two written addresses before the Court but insisted on having his way which eventually led to the adoption of the first to third defendants. He referred to decision of the trial judge at page 380 of the record before submitting that the Appellant who had failed and/or elected not to adopt any of the addresses before the Court cannot now complain that he denied fair hearing.
?In reply on this issue, Appellant submitted that the point raised by the Respondents’ submission touches on ‘principles’ and ‘test’ of fair hearing in the
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resolution of which the Supreme Court has provided a guide in several cases like F.R.N. v. AKABUEZE (2010) 17 NWLR (Pt. 1223) 535; PAN AFRICAN INT. INCORPORATION v. SHORTLINE LIFT BOATS LTD [2010] 6 NWLR (Pt. 1189) 98 at 109. He submitted further that a Court which conducted a proceeding after evidence in such a manner as drove the party to writing two addresses and yet declined to recognize any because the address was not signed by counsel but by party who “was not entitled to address the Court” cannot be said to have given the party an opportunity to be heard.
He relied on OWNERS, MV “ARABELLA” V. NAIC (2008) 11 NWLR (Pt. 1097) 182; ABUBAKAR v. CHUCKS [2007] 18 NWLR (Pt. 1066) 386 at 421; EGHAREVBA v. OSAGIE (2009) 10 NWLR (Pt. 1173) 292 at 310-311 to urge this Court to pronounce on all the issues not touched by the lower Court.
RESOLUTION
This issue as earlier noted bothers on the principle of fair hearing as it applies to the circumstances arising in the instant appeal. What better place to begin the consideration of the extant issue other than the relevant proceedings of the Court.
?
At page 333 of the Records, the proceedings of
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the lower Court on 1st February, 2005 are as follows:
“Johnson O. Ezezoobo (Esq.) for self as plaintiff.
A. B. Kasumu for the 1st – 3rd defendants
Mr. Kasumu – This matter is for defence. Our witness is in Court. But I object to the plaintiff appearing as Counsel in this case. He is the plaintiff and having appeared as plaintiff’s witness, he cannot appear as counsel in this matter …
Mr. Ezezoobo – I rely on Section 36 (1) of the 1999 Constitution. Fair hearing within S.36 (1) is wide enough to cover a party conducting a case by himself or through a counsel …
Court: The objection is already on record. The plaintiff can conduct his case as plaintiff but he will not appear as counsel in this matter, he is not entitled to address the Court as counsel, but he can cross-examine the witnesses of the defense ….”
On the 7th of June, 2016, the proceedings were adjourned due to the fact that the Appellant sought to move his pending application before the Court. The learned trial judge noted that the Appellant “had earlier given evidence in this case” before subsequently holding in her Ruling that “it is unethical for him to rob and
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sack his lawyer and continuing conducting the case as counsel, enjoying the privileges of a counsel.” The matter was then adjourned to 5th July, 2006 for the hearing of the Appellant’s pending motion.
On 5th July, 2006, the plaintiff informed the Court that he could not secure the service of a counsel for lack of means. Thereafter, the Court noted that it had already made a ruling on the necessity of the Appellant to secure the services of a counsel to move his motion but had not done so. Upon application by the Respondent’s counsel, the Appellant’s pending application was struck out and the matter adjourned for adoption of final addresses.
On the 27th of July, 2006, the appellant still “appearing in person” informed Court that he had already filed his written address along with a motion on notice for amendment of pleadings. The Court again directed that the Appellant “should inform his counsel to move the said motion for him having himself given evidence he can longer appear as counsel.”
On 8th of November, 2006, One E. A. Otokhina, Esq. was recorded as counsel on behalf of the Appellant while A. B. Kasunmu was recorded for the 1st
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to 3rd Defendants/Respondents. After A. B. Kasunmu had informed the Court that their final written address was filed out of time, hence the motion on notice to regularize same, Otokhina Esq. for the Appellant informed the Court thus: “we have filed two Motion. The 1st Motion on Notice … seeks for leave to amend the Plaintiff’s Statement of Claim. The 2nd Motion on Notice … seeking among others mareva injunction…” Thereafter, the trial judge decided to take the Respondents’ application to regularize their written address before taking the Appellant’s motion seeking leave to amend his Statement of Claim.
In parenthesis, the gist of the Appellant’s complaint under this issue is that the learned trial judge denied him of his right to fair hearing based on the above enumerated proceedings of the lower Court upon which judgment of the Court was delivered. Appellant contended that not only did the trial judge “forced” him to secure the services of a counsel, she also failed to consider the two final written addresses he had filed. It is important to note that the Appellant filed two final written addresses as a result of the fact that the Respondent
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failed to file their written addresses within time upon the direction of the Court.
It must be said here and now that the question as to whether there was denial of a party’s right to fair hearing would largely depend on what ensued in the conduct of the proceeding being appealed against. A fortiori, while the principle of fair hearing remains immutable, application of the principle vis–vis its outcome in a particular case will largely depend on the facts and circumstances of the particular case. Now, considering the proceedings of the lower Court, can it be said that the Appellant’s right to fair hearing was not breached?
At the foundation of the resolution of this issue is the undisputed fact that the Appellant’s claim before the lower Court is principally on the ground that his employment with the Respondents was not lawfully terminated. The Appellant, a legal practitioner himself, had notified the lower Court of his intention to conduct his case personally as he did not have any means to secure the service of a legal practitioner to act as his counsel. Quite naturally, the Appellant was within his right to conduct his case by
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himself. There is no rule of law that prescribes that a litigant cannot conduct his own case before the Court without the services of a legal practitioner. The Appellant was compelled to get a lawyer who led him in evidence in chief and thereafter he continued to prosecute his case but was met with stiff resistance from the trial judge who insisted that having testified in his own case could not appear to conduct his case himself. Instructively, Supreme Court stated the correct position of the law in ATAKE v. AFEJUKU (1994) LPELR-585 (SC) while considering the constitutional question as to whether a retired judicial officer who cannot afford the services of a counsel should be precluded from appearing before the Court to answer to the charge and offer his defence, held, per BELLO, CJN at page 17, para. A – C held:
“A litigant, whether a legal practitioner or a layman, who conducts his case in person has the right like any legal practitioner who appeared and acts for a client to cite authorities to advance his case…”
On a similar tone, BELGORE, JSC, held at page 21, paras. A-C, thus:
“My answer to the question is that a judicial officer
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ceasing to hold office who intending to exercise his constitutional right defending himself and prosecute his case whether in civil and criminal matter is not a legal practitioner before that Court or Tribunal, he is a party simpliciter. He does not wear wig or robe; he does not sit in the well of the Court reserved for legal practitioners i.e. the bar and to all intent and purposes remain a litigant simpliciter.”
In the instant case, the trial judge, rather than allow the Appellant to conduct his case insisted that he must secure the service of a counsel. The Court ought to have taken into account of the fact that though the Appellant is a legal practitioner, he had already notified the Court that he could not afford to secure the service of counsel as he had no means and also bear in mind that every party, be a barrister or solicitor or even an ordinary member of the public, has a right to argue his case personally either at the Court of first instance or an appeal. See Section 36 of 1999 Constitution.
No doubt, the consequence of the direction of the Court that the Appellant should secure the service of a counsel was brought to bear in the
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proceedings of the Court during the proceedings of 29th November, 2006 when the Appellant’s counsel attempted to adopt the Appellant’s written address at pages 354 to 355 of the record. The proceedings of that day speak for itself thus:
“Otokina:- There are two written address filed on behalf of the Plaintiff. The final one is dated 27th July, 2006, filed before the defendant filed its address within time stipulated. The second final address was filed on 2/11/2006 after we received the defendant counsel address. I adopt both address.
I adopt both addresses.
Court:- Counsel should adopt one because one address was ordered not as many as counsel likes. Besides the addresses were not signed by the counsel but by the plaintiff himself who as a litigant was not entitled to address the Court.
Otokina:- I cannot adopt one of them and leave the other.
Osadare:- We have filed and served our final address which is dated 15/9/2006. It was filed on 22/9/2006. I adopt that address as the final address on behalf of the 1st to 3rd defendants and I urge the Court to dismiss the plaintiff’s case.
Court:- Does the plaintiffs counsel adopt any address
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in reply to the defense address just adopted.
Otokhina:- I adopted addresses. I cannot adopt one and leave the other as I said earlier.
Court:- No address was filed by the counsel anyway. I take it that Plaintiff’s counsel has no final address. The matter was adjourned to 15/1/2007 for judgment.”
The judgment of the lower Court can be found at pages 357 to 391 of the record. Particularly at page 380 of the record, the trial judge noted that since the Appellant’s counsel did not adopt either of the two written addresses, “both addresses are discountenanced because they were neither adopted or filed by counsel to the plaintiff and they are not considered herein.”
Juxtaposing the proceedings of the Court earlier enumerated vis–vis the decision of the trial judge to discountenance the written addresses filed by the Appellant himself and adopted by Mr. Otokhina of counsel, I must say that the proceedings of the lower Court cannot pass the reasonable man’s test. While it is conceded that the learned trial judge was correct by upholding the objection of the Respondent’s counsel that the Appellant cannot appear before the Court as
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counsel, having been a party who had given evidence in the case, I am however unable to hold that the trial judge was fair to the Appellant in the conduct of her proceedings.
As earlier noted, the Appellant had notified the Court that he did not have the means to secure a counsel and the Court insisted that he secure one, who he subsequently engaged so that he can be heard as per his claim before the Court. Having directed the Appellant to engage a counsel albeit the Appellant’s reluctance to do so because he could not afford one, it is incumbent on the trial Court to ensure that the Appellant is properly heard as per his grievances before the Court. Contrary to the decision of the trial judge, the Appellant as Plaintiff was within his right to have filed his written address when it is apparent that the Respondents had impliedly waived their right to file same within the time prescribed. The trial judge therefore erred when he held at page 379 of the record that the “plaintiff did not wait for the defence counsel’s address to be served on him” when it was apparent that the Respondents had not filed any written address within time.
With respect
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to the two addresses filed by the Appellant, the evidence on record shows that same was as a result of the fact that the Appellant had already filed an initial written address before the Respondents later filed their written address out of time subsequent upon a motion for leave which was granted by the Court. Upon being served the Respondent’s written address, the Appellant also filed what he called “plaintiffs written address in addition to address of 26th July, 2006”, hence two written addresses by the Plaintiff. Instructively, the trial judge directed Mr. Otokhina of counsel, to adopt either of the two written addresses, which he refused.
?The question then is: whether the refusal of the counsel for the Appellant/Plaintiff to adopt either of the two written addresses properly filed in Court is sufficient to warrant discountenancing them? The learned trial judge answered the question affirmatively, because in the words of the judge, they “were neither adopted or (sic) filed counsel to the Plaintiff”. I am however constrained to hold in the contrary and my reasons are not far-fetched; and it will still take me back to the fact that there is evidence on
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record that, save for the insistence and Ruling of the trial Court, the Appellant would have conducted and argued his case personally before the Court.
The Apex Court, per NNA-EMEKA AGU, JSC, in BABA v. N.C.A.T.C. (1991) 5 NWLR (Pt. 192) 388, (1991) LPELR-6692 (SC), 34 to 36, paras. E – C, enunciated on the rudiments of fair hearing when he held thus:
“In a judicial or quasi-judicial body, a hearing, in order to be fair must include the right of the person to be affected:
1) to be present all through the proceedings and hear all the evidence against him;
2) to cross-examine or otherwise confront or contradict all witness that testify against him;
3) to have read before him all the documents tendered in evidence at the hearing;
4) to have disclosed to him the nature of all relevant material evidence, including documentary and real evidence, prejudicial the party, save in recognized exceptions;
5) to know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence; and
6) to give evidence by himself, call witnesses, if he likes and make oral submissions either personally or through a
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counsel of his choice.
?There are certain basic criteria and attributes of fair hearing, some of which are relevant in this case.
(i) that the Court shall hear both sides not only in the case but also in all material issues in the case before reaching a decision which may be prejudicial to any party in the case. See Sheldon v. Bromfield Justices (1964) 2 Q.B. 573, at p. 578;
(ii) that the Court or Tribunal shall give equal treatment, opportunity, and consideration to all concerned. See on this: Adigun v. Attorney-General, Oyo State & Ors (1987) 1 NWLR (Pt. 873) 678.
(iii) that the proceedings shall be held in public and all concerned shall have access to and be informed of such place of public hearing and
(iv) that having regard to all the circumstances in every material decision in this case, Justice must not only be done but must manifest and undoubtedly be seen to have been done; R v. Sussex Justices, Ex-parte McCarthy (1924) 1 K.B. 256, at p. 259; Deduwa & Ors v. Okorodudu (1979) 10 S.C. 239.”
Also, in OKAFOR & ORS v. A.G. & COMMISSIONER FOR JUSTICE & ORS [1991] 6 NWLR (Pt. 200) 659, the Court, per
22
KARIBI-WHYTE, JSC, held that “the true test of fair hearing is the impression of a reasonable person who was present at the trial whether from his observation, justice has been done in the case.” Similar rhetoric was expressed in N.A.B. KOTOYE v. C.B.N. [1989] 1 NWLR (Pt. 98) 419, 444 where the Supreme Court held that:
“Clearly whenever the need arises for the determination of the civil rights and obligations of every Nigerian, this provision guarantees to such a person a fair hearing within a reasonable time. Fair hearing has been interpreted by the Courts to be synonymous with fair trial and as implying that every reasonable and fair minded observer who watches the proceedings should be able to come to the conclusion that the Court or other Tribunal has been fair to all the parties concerned…”
See also VICTINO FIXED POOLS LTD v. JOSEPH OJO & ORS [2010] 8 NWLR (Pt. 1197) 486.
On the consequence of non-compliance with the principle of fair hearing, the Court in A.G. RIVERS v. UDE [2006] 17 NWLR [Pt. 1008] 436, held:
“?The right to fair hearing is a fundamental constitunional right guaranteed by the Constitution of the Federal Republic of Nigeria 1960, 1979 and 1999,
23
and a breach of it in trials or adjudication vitiates the proceedings rendering the same null and void and of no effect. Any judgment which is given without due compliance and which has breached fundamental right of fair hearing is a nullity and is capable of being set aside either by the Court that gave it or by an appellate Court….”
The Appellant was compelled to get a lawyer who led him in evidence in chief and thereafter he continued to prosecute his case but was met with stiff resistance from the trial judge who insisted that having testified in his own case could not appear to conduct his case himself. Even if, as the learned trial judge held, the written address was not filed by counsel, but by the Appellant/plaintiff himself, I believe the proper approach the lower Court ought to have adopted was to exercise his discretion by adjourning the proceedings and direct the counsel for the Plaintiff to either file a single final written address or consolidate the two written addresses already filed by the Appellant. This will also allow counsel who was, from the evidence on record, brought in by the Appellant to merely adopt the already filed
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written address, to ensure that the subsequent written address will be properly filed and signed by counsel and not the Appellant who is a party and is being represented by counsel. In O.O.M.F. LTD. v. N.A.C.B. LTD. [2008] 12 NWLR (Pt. 1098) 412, at page 434, B-C, per AKINTAN, JSC, held:
“It is settled law that the principle of fair hearing is fundamental to all Court procedure and proceedings. Like jurisdiction, the right to fair hearing is both fundamental and a constitutional right of every party to a dispute who is to be afforded an opportunity to present his case to the adjudicating authority without let or hindrance from beginning to the end. It also envisages that the Court or Tribunal hearing a case should be fair, impartial and without showing any degree of bias against any of the parties. Every party must therefore be given equal opportunity of presenting his case.”
The importance of a final address was echoed by AKPATA, JSC, in NDU v. STATE [1990] (supra) that “a good address may provide a judge a clear mental opinion to perceive either the tenuousness in what had appeared impregnable or to see through the venner and discover the hard
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cover of a party’s case”. The relevance of final address cannot be over-emphasized. It is no doubt a determinant of the time limit prescribed for the delivery of judgment by Court under Section 294(1) of the 1999 Constitution of the Federal Republic of Nigeria, (as amended). While it may be waived by the parties to a suit, it is nonetheless an implied constitutional right which must not be taken lightly by any Court. See AWUA AMOUGH & ANOR v. ILIAMZUE ZAKI [1998] 3 NWLR (Pt. 542). In OBODO v. OLOMU (1987) NWLR (Pt. 59) 111 at 121, paras. C-E, BELGORE, JSC, held thus:
“The hearing of a case under our system is that every party must not only be heard but also must be afforded the opportunity of being heard. Without the opportunity of one side being heard, there can be no facts for the Court to fully assess as in Mogaji v. Odofin (1978) 4 S.C. 91. Addresses form part of the case and failure to hear the address of party, however overwhelming the evidence seem to be on one side vitiates the trial; because in many cases, it is after the address that one finds the law on the issues fought not in favour of the evidence adduced?”
See also MKPAMA
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v. FIRST BANK [2013] 1-2 SC (Pt. 11) 3; NDUKOBA v. KOLOMO [2005] 1 SC (Pt. 1) 80.
There is no doubt that in the instant case, there was a breach of the Appellant’s right to fair hearing, the learned trial judge having discountenanced the two written addresses filed by the Appellant himself and/or failed to adjourn proceeding to allow the counsel for the Appellant to file a written address not signed or filed by the Appellant as a party to the suit.
In the result, I find for the aforementioned reasons that the Appellant was indeed denied the right to fair hearing by the lower Court.
To this extent, Issue 1 is resolved in favour of the Appellant.
The resolution of the above issue will appear to have rendered the other issues adopted for the determination of this appeal, academic, having being predicated on a judgment based on a null proceedings based on the denial of right of fair hearing by the Court. Nonetheless, I am mindful of the admonitions of the Apex Court in a plethora of decisions that, this Court, as an intermediate Court, should pronounce on all issues which arise for determination before it. However, I believe, where a
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proceeding is declared to be a nullity, there can be no proper determination of the civil rights or obligations of the parties to a case before the Court. See FEDERAL MINISTRY OF HEALTH v. C.S.A. LTD [2009] 9 NWLR (Pt. 1145) 193 at 221; U.B.N. PLC v. NWANAJUO (2012) LPELR-7914 (CA). Therefore, I do not consider it necessary to proceed to resolve of the other issues herein.
Meanwhile, I take cognizance of the fact that the subject matter in the instant appeal is labour related and with the coming into force of Section 254C of the Constitution of the Federal republic of Nigeria 1999 as amended, the jurisdiction of any Court has completely migrated to the National Industrial Court of Nigeria (N.I.C.N.), since the Third Alteration has conferred on the N.I.C.N. exclusive jurisdiction over issues of employment and labour related matters. Section 254C reads:
“Notwithstanding the provision of Sections 250, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction, to the exclusion of any
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other Court, in civil cause and matters:-
(a) Relating to or connected with any labour employment, trade union, industrial relations and matter arising from work place, the conditions of service including health, safety, welfare of labour employee, worker and matters incidental there to or connected there with…
(k) Relating to or connected with dispute arising from payment of salaries, wages, pension gratuities, allowance, benefits and any other entitlement of an employee worker political or public office holder, judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto.”
In view of the foregoing, the suit cannot be remitted back to the Federal High Court because it lacks jurisdiction to entertain same. Pursuant to the general powers conferred upon this Court by Section 16 of the Court of Appeal Act, 2011, it will serve the interest of the parties that the suit be transferred to the National Industrial Court for re-trial. See N.U.T., NIGER STATE v. CONSST, NIGER STATE (2012) 10 NWLR (Pt. 1307) 89.
On the whole, the Appellant’s appeal succeeds and is hereby allowed. The judgment of
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Aliyu, J., of the Federal High Court delivered on 6th February, 2007 is hereby set aside. The suit is hereby transferred to the President of the National Industrial Court for accelerated hearing and determination of the suit. No order as to costs.
SIDI DAUDA BAGE, J.C.A.: Having adopted the reasoning and conclusion reached in the judgment just delivered by my learned brother the Hon. Justice ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA, as mine, I agree that the instant appeal succeeds and is hereby allowed by me.
The judgment of Aliyu J., of the Federal High Court delivered on 6th February 2007 is hereby set aside. The suit is hereby transferred to the President of the National Industrial Court for accelerated hearing and determination of the suit. No order as to costs.
JAMILU YAMMAMA TUKUR, J.C.A.: I read in draft the lead judgment of my learned brother A. O. OBASEKI-ADEJUMO, J.C.A.
I adopt all the reasons and conclusions arrived at in the lead judgment as mine with nothing to add.
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>
Appearances
Johnson Esezoobo, Esq.For Appellant
AND
A. B. Kasunmu, Esq.For Respondent
