MASTA & ORS v. YOBE STATE GOVT & ORS
(2020)LCN/14170(CA)
In The Court Of Appeal
(JOS JUDICIAL DIVISION)
On Thursday, May 14, 2020
CA/J/267/2018
Before Our Lordships:
Tani Yusuf Hassan Justice of the Court of Appeal
Mudashiru Nasiru Oniyangi Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Between
1.HON. GONI MALLAM MASTA 2.HON.ALHAJI ISA 3.HON. ADAMU IBRAHIM 4.HON. USMAN BULAMA 5.HON.ABUBAKAR HAYATU 6.HON. BUKAR DANTIYE 7.HON. MUHAMMED KACHALLA 8.HON. GARBA BELLO 9.HON.SALE DAUDA TIKAU 10.HON. RABIU ADAMU TARAJIN 11.HON. ADO AUDU 12.HON. SULEIMAN AUDU 13.SANI JAURO JUMBA 14.MOHAMMED A. AUDU 15.HON. MOHAMMED MANSUR AUDU 16.HON. ISA MUHAMMED 17.HON. ESTHER YARO 18.HON. HAMIDU MOHAMMED 19.HON. IDRISSA ISAH GWAIGAI 20.HON. MOHAMMED SULE 21.HON. IBRAHIM UMAR 22.HON. AUDU UMAR SHAHU 23.HON. HASSAN MOHAMMED ZINI 24.HON. BABA GANA HASSAN 25.HON. MOHAMMED SANI 26.MOHAMMED KAKA 27.HON. MOHAMMED BUKAR 28.HON. ALI A. GAJE 29.HON. AHMADU ADAMU 30.HON. IBRAHIM AUDU TELAH 31.HON. KABIRU A. BULAMA 32.HON. HASSAN AUDU 33.HON. USMAN A. USMAN 34.HON. AMINA M. DANGANE 35.HON. IBRAHIM BABA GANA 36.HON. LAWAN RAVA 37.HON. MOHAMMED JAJI 38.HON. NUHU USMAN 39.HON. AJI SALE SULEIMAN 40.HON. ALHAJI MOHAMMED 41.HON. ALHASSAN IBRAHIM 42.HON. BURA AMSAMI 43.HON. SULEIMAN KAWU 44.HON. ZANNA UMAR 45.HON. BAKYARI ALHAJI 46.HON. ABDULLAHI UMAR 47.HON. ADAMU MAINA AJI 48.HON. GONI BUKAR 49.HON. ZUBAIRU MOHAMMED 50.HON. MAINA BUKAR 51.HON. GARBA MOKOYO 52.HON. HAUWA AUDU 53.HON. ABUBAKAR KONTO 54.HON. LAWAN AJI KOLO 55.HON. MUSTAPHA BUKAR GANA 56.HON. BABA GANA JALO 57.HON. GONI SHETTIMA 58.HON. BABA GANA GAMBOMI 59.HON. GONI KACHALLA 60.HON. LAWAN DAN MANI 61.HON. ALHAJI ALI MALLAM GANA 62.HON. MUHAMMED ALAHAJI WAKIL 63.HON. MAJI SHERIFF KONTO 64.HON. MOHAMMED KYARI 65.HON. BUKAR ZANA NUR 66.HON. ALHAJI BUKAR GANA 67.HON. MODU MUSTAPHA 68.HON. YAGANA KATGAMA 69.HON. BELLO MOHAMMED 70.HON. MAMU DOGO 71.HON. ABDULKARIM GUMSA 72.HON. A. KAUMI BUKAR 73.HON. SHETTIMA LAWAN 74.HON. IBRAHIM B. MUSA 75.HON. ALIYU AUDU GARBI 76.HON. SALE BULAMA 77.HON. SALISU HUSSAINI 78.HON. ABUBAKAR K. MOHAMMED 79.HON. MOHAMMED ALI 80.HON. ABDULLAHI YERIMA 81.HON. ALHAJI ZULUMAIGARI 82.HON. HAJIYA AISHA MOHAMMED 83.HON. DALHA USMAN DALHA 84.HON. MOHAMMED GAJI GANA 85.HON. MOHAMMED ZANAH ALI 86.HON. GOJE ADAMU 87.HON. SULEIMAN M. DADA 88.HON. UMARU MUSTAPHA 89.HON. MALLAM KURA ISA 90.HON. ISA GARBA MADAGO 91.HON. ABDULLAHI AHMAD GARBA 92.HON. IBRAHIM KYARI 93.HON. SALLA BILAL 94.HON. ABUBAKAR ABACHA B. JAWA 95.HON. MOHAMMED AUWAL 96.HON. ZAINAB UMAR 97.HON. ABUBAKAR MAI ZABU 98.HON. IBRAHIM A. ISA 99.HON. ADAMU LAULAUWI 100. HON. ABUBAKAR MOHAMMED 101.HON. KAILU A. SABO 102.HON. BABA GANA AUDU 103.HON. ADAMU A. SHEHU 104.HON. INNUSA M. SHAIBU 105.HON. HANNAFI YUSUF 106.HON. HASSAN IBRAHIM 107.HON. MAMMAN YAU 108.HON. KYARI MODU 109.HON. ALHAJI MANMANAD 110.HON. GALLIMA A. LAKU 111.HON. YAU A. IDI 112.HON. AUDU KALLAMU 113.HON. HABU KANO 114.HON. MAMMAN GARBA 115.HON. YA KELLU 116.HON. LAWAN AUDU 117.HON. MOHAMMED LAMBA 118.HON. USMAN BOMOI 119.HON. YAU ISA 120.HON. AUDU ISA 121.HON. ABUBAKAR AJIYA 122.HON. AHMAD SHAIBU 123.HON. ALHAJI SALE MALURI 124.HON. ZAKAR YUSUF 125.HON. HALADU SAIDU 126.HON. AUDU MOAHAMMED 127.HON. FATIMA BABA YAMUSA 128.HON. SHAIBU IBRAHIM BABI 129.HON. SHAGA JIBIR TURAI 130.HON. BABARU ZUBAIRU 131.HON. USMAN ABDULLAHI 132.HON. USMAN SULE 133.HON. USMAN MAKINTA 134.HON.AMINA BULAMA 135. HON. BUKAR LAWAN 136.HON. LAWAN ZANNAH 137.HON. YURA MAMMAN 138.HON. MAIGARI FAJIMI 139.HON. WAKIL HABU 140.HON. BA’AWA KOLOMI 141.HON. CHANDOMA MOAHAMMED 142.HON. ABDULLAHI ABUBAKAR 143.HON. WAGANI ZARMA 144.HON. ABDULLAHI IBRAHIM 145.HON. MAINAU GREMA 146.HON. ABUBA BARURA 147.HON. MELE A. NUJIYA 148.HON. KUNDA MARUMA 149.HON. ADAMU A. ZAILANI 150.HON. AJI TALBA 151.HON. MOHAMMED HARUNA 152.HON. ALHAJI GIDOMA 153.HON. KACHALLAH YUNOMA 154.HON. ADAMU HASSAN 155.HON. LAMIDO ABBA 156.HON. WADI LAWAN 157.HON. IBRAHIM YARO 158.HON. HARUNA MUSA 159.HON. ABDULLAHI WAKIL 160.HON. NASIRU SABO 161.HON. LAWAN BUBA 162.HON. MOHAMMED MAIGORO 163.HON. IBRAHIM SANI BULUNGU 164.HON. MUSA MOHAMMED MAISORO 165.HON. HASSAN LAWAN BK 166.HON. NGORI MUKTAR 167.HON. NUHU B. HASSAN 168.HON. BULAMA MODU 169.HON. UMARU MUSA BUBA 170.HON. ABDULLAHI UBA 171.HON. GARBA ISA APPELANT(S)
And
1.YOBE STATE GOVERNMENT 2.DAMATURU LOCAL GOVERNMENT COUNCIL 3.NANGERE LOCAL GOVERNMENT COUNCIL 4.BADE LOCAL GOVERNMENT COUNCIL 5.BURSARI LOCAL GOVERNMENT COUNCIL 6.GEIDAM LOCAL GOVERNMENT COUNCIL 7.NGURU LOCAL GOVERNMENT COUNCIL 8.JAKUSKO LOCAL GOVERNMENT COUNCIL 9.MACHINA LOCAL GOVERNMENT COUNCIL 10.FIKA LOCAL GOVERNMENT COUNCIL 11.YUSUFARI LOCAL GOVERNMENT COUNCIL 12.KARASUWA LOCAL GOVERNMENT COUNCIL 13.TARMUWA LOCAL GOVERNMENT COUNCIL 14.FUNE LOCAL GOVERNMENT COUNCIL 15.GUJBA LOCAL GOVERNMENT COUNCIL 16.POTISKUM LOCAL GOVERNMENT COUNCIL RESPONDENT(S)
RATIO
OCCASIONS WHEN LEAVE SHALL BE SOUGHT TO APPEAL TO THE COURT OF APPEAL
In fact even Section 241(1) of the Constitution which sets out the occasions when leave shall be sought to appeal to this Court relate to only appeals from the State and Federal High Courts and not appeals from other subordinate Courts like the National Industrial Court of Nigeria (the Court below), the Sharia Court of Appeal and the Customary Courts of Appeal.
The said Section 242(1) of the 1999 Constitution for ease of reference reads:
Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from the decisions of the Federal High Court or State High Court to the Court of Appeal with the leave of the Federal High Court or State High Court or the Court of Appeal. (Italics mine)
It is this provision of the Constitution read alongside Section 241(1) of the Constitution, particularly with Subsection (a) thereof stating that appeal shall lie to this Court from decisions of the State and Federal High Courts ‘where the ground involves questions of law alone decisions in any civil and criminal proceedings,’ that the deduction is made that any appeal from the said two High Courts on facts or mixed law and facts that is not covered by the exemptions in Section 241(1) can only lie to this Court with the leave of those Courts or this Court.
With respect to appeals from the National Industrial Court of Nigeria to this Court, Section 243 (2) of the 1999 Constitution specifically dealing with it does not make any such dichotomy of questions of law, facts and mixed law and facts for purposes of exercise of right of appeal. It simply says:
(2)An appeal shall lie from the decision of the National Industrial Court of Nigeria as of right to the Court of Appeal on questions of fundamental rights as contained in Chapter IV of this Constitution as it relates to matters upon which the National Industrial Court has jurisdiction.
(3)An appeal shall only lie from the decisions of the National Industrial Court to the Court of Appeal as may be prescribed by an Act of the National Assembly;
Provided that where an Act or Law prescribes that an appeal shall lie from decisions of the National Industrial Court to the Court of Appeal, such appeal shall be with the leave of the Court of Appeal.
At any rate, even assuming, but without conceding, that the provisions of Section 242(1) of the Constitution governing appeals to this Court from decisions of the State and Federal High Courts on questions of facts and mixed law and facts for purposes of exercise of right appeal also apply to the National Industrial Court of Nigeria, this appeal being against a final decision of that Court sitting as a Court of first instance would have lain to this Court as of right under Section 241(1) (a) of the same 1999 Constitution stating that appeals shall lie to this Court from final decisions of the Federal or State High Court sitting as Courts of first instance regardless of whether the appeal raises issues of facts or mixed law and fact under Section 242(1) of the Constitution: see Aqua Ltd v. Ondo State Sports Council (1988) 4 NWLR (PT 91) 422 (SC). PER UGO, J.C.A.
CONSEQUENCES OF THE FAILURE TO SERVE COURT PROCESSES TO A PARTY ENTITLED TO BE SERVED
..issues is crucial given the well settled position of the law that when a party is entitled to be served Court processes but not served every proceedings based on such non-service is a nullity no matter how well conducted: see C.M & E.S. Ltd v. Pazan Services Nig. Ltd (2020) 1 NWLR 70 (SC); Onwubuya v. Ikegbunam (2019) 16 NWLR (PT1697) 94 (SC); Eke v. Ogbonda (2007) FWLR (PT 351) 1456.
It is settled that where for any reason the Court does not sit on a day a case is fixed, parties should be served hearing notice of the next adjourned date: International Bank Plc v. Onwuka (2009) 8 NWLR (PT 1144) 462 @ 472. PER UGO, J.C.A.
THE DOCTRINE OF FAIR HEARING
Let me add that the bottom line to the doctrine of fair hearing envisaged by virtue of Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 is that in the determination of civil rights and obligations of citizens, is a trial conducted according to all legal rules to ensure that justice is done to all parties. See N. S. ENG. CO. LTD V. EZENDUKA (2002) 2 NWKR (Pt. 748) 469 at 499, ALAMIEYESEIGHA V. IGONIWARI (No. 2) (2007) 7 NWLR (Pt. 1034) 524 at 588, MIL. GOV. LAGOS STATE AND 4 ORS V. ADEYIGA AND ORS (2012) 2 SC (Pt. 1) 68. PER ONIYANGI, J.C.A.
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is from the decision of the National Industrial Court of Nigeria (NICN) of 30/11/2017 (Jos Division) handed down by R. H. Gwandu, J., entering Terms of Settlement dated 20th April 2017 as the judgment of the Court by consent of parties.
The main issue in the appeal is whether that Court did not breach appellants’ right to fair hearing when it foreclosed them from cross-examining first appellant.
Appellants commenced the said action before the National Industrial Court of Nigeria (NICN) against the respondents, as defendants, claiming the sum of N847,643,182.20 (Eight Hundred and Forty-Seven Million, Six Hundred and Forty Three Naira, One Hundred and Eighty Two Naira, Twenty Kobo) as out-standing balance of allowances statutorily due to them by reason of their services to respondents as elected representatives of their people in respondents’ Local Government Councils between December 2013 and December 2015.
It is important to point out in earnest (as that seems to be an issue in this appeal) that appellants did not take out a representative suit; they
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simply took out a joint action in their joint names, instructed a common counsel in Mr. Ahmed Igoche and relied jointly on the witness statement of the first appellant, Hon. Goni Mallam Masta. That means none of them, not even 1st appellant who deposed to their only witness statement, is a representative of any of them, meaning further that the major principle of representative actions that the representative or named party is dominis litis and his actions bind the unnamed persons he represents is not applicable here.
It so happened that after exchanging pleadings before the lower Court both parties, on the advice of the trial judge, met several times to reach agreement and settle the matter out of Court. In the course of that Mr. Igoche for appellants and Learned State Counsel Mr. M.N. Babazau of the Yobe State Ministry of Justice for Respondents even confirmed to the lower Court in its sitting of 25/01/2017 that parties had ‘almost concluded’. Counsel thereupon jointly applied for a further date to file the said terms of settlement. Somehow however, when the Court next sat on 30/03/2017, while Mr. Igoche informed the Court that settlement
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had collapsed, Mr. Babazau insisted that it had not and he was sure they could bring in the terms of settlement. The response of the Court that day was to adjourn the case to the 27th of April 2017 for report of settlement or definite hearing.
The records reveal that the next time the Court sat was not 27/4/2017 as scheduled but on 30/05/2017. On that date, Mr. Igoche for appellants again informed the Court that his clients had not been settled, with Mr. Babazau for respondent’s counsel again countering that parties had actually settled, appellants paid and respondents had even filed a motion to challenge the jurisdiction of the Court.
That motion of respondents to ‘challenge the jurisdiction of the Court’ eventually turned out to be simply one entreating the Court to accept the said disputed Terms of Settlement as the judgment of the Court by consent. Incidentally too, 1st appellant, Hon. Goni Mallam Masta, singularly signed the said Terms of settlement on behalf of appellants, as against the requirements of Order 47 R.9 of the Rules of the National Industrial Court of Nigeria that “In any case or matter in which the parties
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are represented by legal Practitioners, no order for entering judgment shall be made by consent unless the terms of settlement are signed by both parties and their counsel.” The same 1st appellant, Hon. Goni Mallam Masta, also deposed to Respondent’s affidavit in support of their motion for the Court to uphold the same Terms of settlement.
The said terms of settlement were to the effect that appellants had agreed to and had been paid by respondents the sum of N64,609,770 (Sixty Million, Six Hundred and Nine Thousand, Seven Hundred and Seventy Naira) by Respondents as final settlement of their claim of N847,643,182.20 (Eight Hundred and Forty-Seven Million, Six Hundred and Forty Three Naira, One Hundred and Eighty Two Naira, Twenty Kobo).
With appellants, except first appellant, still denying reaching terms of settlement with respondents, Gwandu, J., ordered parties to exchange affidavits on the issue so that oral evidence could be taken to clear the conflict.
In compliance with that directive appellants duly caused 160th appellant, Hon. Nasiru Sabo, to depose to a counter affidavit in opposition to the application. There Mr. Sabo
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stated, among others, that the said terms of settlement was a fraudulent document and the product of a contrivance, connivance and collusion by Respondents and 1st appellant who according to him had been promised a lot of goodies by the respondents in exchange for his endorsement and support. Mr. Sabo however admitted that respondents actually paid them and other former councilors who were not parties to the suit the sum of N64,609,709.00 (Sixty-Four Million, Six Hundred and Nine Thousand, Seven Hundred and Seventy Naira), that is even as he asserted that that payment was in respect of respondent’s admission in their statement of defence (paragraph 36 thereof) of indebtedness to them to the tune of N62,000,000.00 (Sixty-Two Million Naira) and not because of any agreed final settlement of their claim as claimed by Respondents.
First appellant who to all intents and purposes had parted ways with his co-claimants/appellants and was now fronting the cause of the respondents regarding the disputed Terms of Settlement on behalf of respondents responded with a Further Affidavit in support of his contention that the 20th April 2017 Terms of Settlement was
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the product of a consensus between the parties.
With issues so joined, Mr. Sabo took oath on 21/10/2017 and was cross-examined by counsel to both parties, after which the case was adjourned to 01/11/2017 for cross-examination of first appellant. Unfortunately, even though the Court sat on the said 01/11/2017, 1st appellant’s cross-examination could not take off but was adjourned to 21/11/2017, on which day the Court did not sit because the trial Judge was away to Abuja attending the Judges’ Conference of that year.
What followed upon the non-sitting of the Court on that 21/11/2017 and the steps that were taken by the Court is the main bone of contention in this appeal. For on that 29/11/2017, when the Court sat, all the appellants (excepting 1st appellant) and their counsel Mr. Igoche were absent while respondents and their counsel, Chief Gideon Kuttu and his team of lawyers who had by then replaced the State Counsel as counsel for Respondents, were present.
With that state of affairs, the trial judge, on the prompting of Chief Kuttu coupled with the bailiff’s oral testimony that Mr. Igoche had been since 22/11/2017 served
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hearing notice by Fedex Courier Service of the 29/11/2017 sitting and had even been further called on phone repeatedly but counsel refused to take his call, foreclosed appellants from cross-examining 1st appellant, adjourned the matter for ruling on the next day (30.11.2017) and actually ruled on that 30/11/2017 accepting the disputed Terms of settlement as the product of agreement by both parties and entered it as the judgment of the Court by consent of parties.
Appellants are dissatisfied with those steps taken by the lower Court and obtained the leave of this Court to bring the instant appeal on four grounds of appeal, from which they framed the following four issues for determination:
1.Whether on the face of the records it can be said that there is any hearing notice emanating from the National Industrial Court of Nigeria (NICN) Jos which was served on the appellants before the hearing of 29th November 2017, and if yes, whether the lower Court had jurisdiction as it assumed to hear the matter culminating in its ruling of 30th November 2017.
2.Whether the order of the learned trial judge foreclosing the cross-examination of the
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deponent to the affidavit in support of the Respondents’ motion on notice by the appellants’ counsel did not amount to a clear violation of the appellants’ right to fair hearing.
3.Whether the learned trial judge was not wrong when she held that the payment of some amount of money to the appellants amongst others was predicated on purported terms of settlement.
4.Whether the learned trial judge was right to have adopted the terms of settlement which was not a product of an agreement ad idem and lacking in proper authorization and execution as the judgment of the Court.
Chief Kuttu for respondents first raised a preliminary objection to all four Grounds of the Appeal on the grounds:
(1)That Ground 1 of the appeal questions service of Hearing Notice on appellants and so raised issues of mixed law and fact for which leave of Court was necessary but was not obtained thus rendering it incompetent;
(2) That Ground 2 questions the lower Court’s exercise of its discretionary powers to foreclose a party from cross-examining witness who was afforded opportunity to cross-examine so it is also one of mixed law and fact for
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which leave of Court was also required but not sought and therefore incompetent, and
(3)That Grounds 3 and 4 question the entering of consent judgment by the trial Court and so also question exercise of discretion by the Court as well as its evaluation of the evidence and therefore also raise issues of mixed law and fact for which leave of Court outside the leave granted by this Court to appeal the judgment of the NICN was required not obtained so they are also incompetent.
Appellants’ in answer submitted that all their four grounds of appeal raised questions of law alone so leave of Court was not necessary. They then went on to rephrase and adopt the four issues of appellants on the merits of the appeal.
Resolution of preliminary objection: I will say, straight away, that the preliminary objection, with due respect to learned counsel to respondents, is ill founded. Chief Kuttu for appellants cited the cases of Ogbechie v. Onochie (No 1) (1986) 1 NSCC 433, (1986) 2 NWLR (PT 23) 484; Medical and Dental Practitioners Tribunal v. Okonkwo (2001) 7 NWLR (PT 711) 206, Fasuyi v. P.D.P. (2018) EJSC (VOL. 87) 154 @ 162, Ngere v. Okuruket (2015)
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EJSC (Vol. 12) 133, and Chrome Air Services Ltd v. Fidelity Bank (2018) EJSC (Vol. 86) 14 @ 166 in support of his contention that leave must be sought to appeal whenever a ground of appeal raises questions of mixed law and fact or questions exercise of discretion by a Court. Learned counsel for respondents obviously fell into the error, which now seems common place at the Bar, that the decisions in those cases he cited, which cases actually only relate to when leave is required for appeals from this Court to the Supreme Court as provided in Section 233(2) of the 1999 Constitution of this country, apply generally to all appeals including those coming to this Court from every lower Court. That is far from the correct legal position as neither Section 233(2) nor 242(1) of the 1999 Constitution nor any of those cases states anything to that effect. In fact even Section 241(1) of the Constitution which sets out the occasions when leave shall be sought to appeal to this Court relate to only appeals from the State and Federal High Courts and not appeals from other subordinate Courts like the National Industrial Court of Nigeria (the Court below), the Sharia Court of
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Appeal and the Customary Courts of Appeal.
The said Section 242(1) of the 1999 Constitution for ease of reference reads:
Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from the decisions of the Federal High Court or State High Court to the Court of Appeal with the leave of the Federal High Court or State High Court or the Court of Appeal. (Italics mine)
It is this provision of the Constitution read alongside Section 241(1) of the Constitution, particularly with Subsection (a) thereof stating that appeal shall lie to this Court from decisions of the State and Federal High Courts ‘where the ground involves questions of law alone decisions in any civil and criminal proceedings,’ that the deduction is made that any appeal from the said two High Courts on facts or mixed law and facts that is not covered by the exemptions in Section 241(1) can only lie to this Court with the leave of those Courts or this Court.
With respect to appeals from the National Industrial Court of Nigeria to this Court, Section 243 (2) of the 1999 Constitution specifically dealing with it does not make any such dichotomy
11
of questions of law, facts and mixed law and facts for purposes of exercise of right of appeal. It simply says:
(2)An appeal shall lie from the decision of the National Industrial Court of Nigeria as of right to the Court of Appeal on questions of fundamental rights as contained in Chapter IV of this Constitution as it relates to matters upon which the National Industrial Court has jurisdiction.
(3)An appeal shall only lie from the decisions of the National Industrial Court to the Court of Appeal as may be prescribed by an Act of the National Assembly;
Provided that where an Act or Law prescribes that an appeal shall lie from decisions of the National Industrial Court to the Court of Appeal, such appeal shall be with the leave of the Court of Appeal.
At any rate, even assuming, but without conceding, that the provisions of Section 242(1) of the Constitution governing appeals to this Court from decisions of the State and Federal High Courts on questions of facts and mixed law and facts for purposes of exercise of right appeal also apply to the National Industrial Court of Nigeria, this appeal being against a final decision of that Court
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sitting as a Court of first instance would have lain to this Court as of right under Section 241(1) (a) of the same 1999 Constitution stating that appeals shall lie to this Court from final decisions of the Federal or State High Court sitting as Courts of first instance regardless of whether the appeal raises issues of facts or mixed law and fact under Section 242(1) of the Constitution: see Aqua Ltd v. Ondo State Sports Council (1988) 4 NWLR (PT 91) 422 (SC).
In summary, the preliminary objection is misconceived, completely unmeritorious and is here overruled.
Merits of the Appeal
That takes me straight to the merits of the four issues.
Issues 1 and 2: I start from Issues 1 and 2 of both parties. Those two issues raise the very fundamental and radical issue of service of hearing notice of the 29/11/2017 sitting of the lower Court on Mr. Igoche of counsel to appellants. Arguing those issues, Mr. Igoche made the point that failure to serve hearing notice on parties in litigation in circumstances where it is required amounts to breach of the affected party’s right to fair hearing and nullifies any proceeding conducted subsequently, no
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matter how well such proceedings are conducted. He submitted that that is the fate of the lower Court’s proceedings of 29/11/2017 and its subsequent 30/11/2017 Ruling accepting the disputed terms of settlement as the judgment of the Court. Learned counsel argued that the fact that respondents and their counsel were in Court on both days is not proof that he was also served hearing notice as asserted by the bailiff of Court. The presence of 1st appellant in Court on both days, he also submitted, is not proof of service of hearing notice on him or appellants. He labeled the testimony of the bailiff in open Court on 29/11/2017 vague and lacking in details as to place and time of service. That is even as he adds that such testimony is not even one of the recognized ways of proof of service by the rules of that Court. How to prove service of process by an external process server like Fedex Courier Service in the National Industrial Court of Nigeria, he submitted, is contained in Order 7 R. 14 of the Rules of that Court 2017 and it is that only an affidavit of service deposed to by the said External Process Server would suffice as proof of service. He added
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that proof of service is by affidavit of service deposed to by the very person who did the service. He said since the bailiff asserts that there was a Delivery Note of service by Fedex Courier Service, it was incumbent on the lower Court to satisfy itself from its records that the said Delivery Note did actually exist. That, he said, was not the case here as that Note was not produced and is not even contained in the records before this Court. Counsel wondered why if he was actually served by courier service and there was a delivery note to confirm it the bailiff still saw it necessary to call him repeatedly on phone to inform him of the said service as the bailiff claims he did, which claim itself he added is even a lie. Counsel in conclusion urged us to resolve this issue(s) in favour of appellants and hold that neither appellants nor himself as their counsel was served Hearing Notice of the lower Court’s sitting of 29th and 30th days of November 2017 and that denied the lower Court of jurisdiction to hear the case on those two days, with the attendant consequence that the ruling delivered by it on 30th November 2017 is a nullity and liable to be set aside.
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Chief Kuttu for respondents prefaced his response by first agreeing with appellants that when a party is entitled to be served Court processes and he is not served every proceedings based on such non-service is a nullity no matter how well conducted. Learned counsel however insisted that Mr. Igoche was served by Fedex Courier Service on 22/11/2017, as testified to by the Court Bailiff, hearing notice of the 29th November 2017 sitting of the lower Court. Counsel found further support for his contention in the bare Hearing Notice and Affidavit of Service deposed to by the said bailiff and contained at pages 2 and 3 of the Supplementary Records of Appeal. He added that the 29/11/2017 oral testimony of the bailiff also carries probative value and weight more so as it was never challenged. He cited Emeka v. Okoroafor (2017) 11 NWLR (PT 577) 410 @ 469 and Mgbenwelu v. Olumba (2017) 11 NWLR (PT 1558) 169 @ 195 to submit that affidavit of service by a bailiff is prima facie proof of service and the proper way to challenge it is by counter affidavit. Learned counsel then made quite some heavy weather of the fact that 1st appellant was in Court on both the
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29th and 30th days of November 2017 and was recorded to have represented other appellants who never disowned him as their co-claimant and representative. The said 1st appellant, he further submitted, is the person who was to be cross-examined by Mr. Igoche on 29/11/2017. Counsel then invoked Order 7 Rule 1 of the Rules of the lower Court to submit that service of hearing notice on Mr. Igoche and proof of service by the affidavit of service deposed to by bailiff Wilson as shown at pages 2 and 3 of the supplementary records of appeal complied with those rules and Mr. Igoche deliberately abandoned appellants by staying away from Court and so forfeited his right to cross-examine 1st appellant.
Chief Kuttu also submitted that appellants, having sought and had two adjournments on 23/11/2017 and 1/11/2017, had exhausted their right of adjournment as provided by Order 38 R. 9 of the Rules of the lower Court and so no longer entitled to adjournment and the Court right in proceeding with the case on 29/11/2017 as it did. Counsel finally urged us to resolve these two issues against appellants.
Resolution of issue
Getting the correct answer to these two
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issues is crucial given the well settled position of the law that when a party is entitled to be served Court processes but not served every proceedings based on such non-service is a nullity no matter how well conducted: see C.M & E.S. Ltd v. Pazan Services Nig. Ltd (2020) 1 NWLR 70 (SC); Onwubuya v. Ikegbunam (2019) 16 NWLR (PT1697) 94 (SC); Eke v. Ogbonda (2007) FWLR (PT 351) 1456.
It is settled that where for any reason the Court does not sit on a day a case is fixed, parties should be served hearing notice of the next adjourned date: International Bank Plc v. Onwuka (2009) 8 NWLR (PT 1144) 462 @ 472
Here it is not in dispute that since the lower Court was unable to sit on 21/11/2017 when the case was originally fixed, parties were entitled to be served hearing notice. In fact that is why the lower Court also saw it necessary it to issue hearing notices for service on parties through their counsel. The problem is that while Chief Kuttu for Respondents who was in Court on 29/11/2017 with a representative of his clients was by his admission served, neither Mr. Igoche for appellants nor any of his clients (except 1st appellant who had by then
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become a witness for Chief Kuttu and his clients on the crucial issue of the disputed terms of settlement) were in Court. They claim they were not in Court because they were not aware that it was sitting for their case that day, having not been served hearing notice.
How 1st appellant got to know about the 29/11/2017 adjournment and found his way to Court that day even when he was not served hearing notice remained a mystery, but it will not be out of place for one to infer that he may well have been informed by the respondents whose side he had taken on the issue at stake. At any rate, his presence in Court on 29/11/2017 when no one said he was served hearing notice cannot by any means be taken as appearance for other appellants who were now on opposing sides with him.
So the crucial issue remains whether appellant’s counsel, Mr. Ahmed Igoche, who respondents claimed was really served Hearing Notice of the 29/11/2017 sitting of the lower Court like Chief Kuttu for Respondents admits he himself was served. On that, Chief Kuttu is recorded to have announced to the lower Court on 29/11/2017 as follows:
“… we were served with
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a hearing notice for today the 29/11/2017 and we were informed that the claimants and their counsel [Mr. Igoche] were served in accordance with the rules of this Court with a hearing notice through courier service.” (Italics mine)
Immediately following that information by Chief Kuttu appears the following in the records:
“Bailiff’s attestation: 1, Nanzing Wilson sworn in open Court.
I sent the hearing notice on the 22/11/2017 by courier, Fedex.
Yes it has been served; we have the delivery note and we will supply it, as the photocopy is attached.
Before today we have been calling from the Litigation Department and it was ringing Mr Igoche did not pick and today his phone has been off since morning.”
It was after this oral testimony by the bailiff that Chief Kuttu for respondents rose up again to urge the lower Court to hold that appellants were no longer desirous of cross-examining 1st appellant so it should deal with the matter as it deemed fit in the interest of justice, foreclose appellants’ right to cross-examine Goni Mallam Masta and proceed to enter judgment as per the dispute terms of
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settlement, an invitation the lower Court accepted wholeheartedly and adjourned the case to the following day, 30/11/2017, when it ruled in favour of respondents’ application and entered judgment upholding the said disputed terms of settlement.
Clear from the deposition of Bailiff Nanzing Wilson reproduced above are the following:
1.That the said bailiff Mr. Wilson did not by serve the disputed Hearing Notice on Mr. Igoche; rather, the hearing notice was only issued by the bailiff and handed over to Fedex Courier Service and it is Fedex Courier that did the actual service on Mr. Igoche for appellants.
2. That the said service was done only on appellants through their counsel Mr. Igoche and not on any of the 170 appellants, not even on 1st appellant Hon. Goni Mallam Masta.
3.That service on Mr. Igoche by Fedex Courier Service was evidenced by Delivery Note issued by Fedex a photocopy of same was even attached (the bailiff did not say what it was attached to) and the bailiff promised to supply it to the Court.
4.The bailiff, despite being in possession of the said Delivery Note of Fedex Courier Service evidencing service of
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hearing notice on Mr. Igoche, still rang Mr. Igoche repeatedly and when Mr. Igoche did not pick, he rang him, again repeatedly, on the very morning of 29/11/2017 when the case was to come up but Mr. Igoche’s line was off so he did not get through.
Perhaps the most pertinent question that arises from all this evidence of the Bailiff is: how is service of process by an external process server like Fedex Courier Service proved in the National Industrial Court of Nigeria? The answer is in Order 7 Rule 14 of the 2017 Rules of that Court stating that:
Order 7, R.14:
In all cases where service of any complaint or document has been effected by an officer of the Court or an official or External Process Server, an affidavit of service sworn to by the Officer of the Court or an Official or External Process Server appointed by the Court, shall on production, without proof of signature of the person so served be prima facie evidence of service. (Italics mine)
Put simply, the only proof of service of Court process by an external process server like Fedex Courier Service recognized by the Rules of the National Industrial Court of Nigeria is an
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affidavit of service deposed to by the external process server itself and it is only such affidavit that suffices as prima facie evidence of service of such process. That in effect means the affidavit of service as well as the oral testimony of Head Bailiff Vonchir Nanzing Wilson both of which the lower Court relied on and which Chief Kuttu for Respondents also pressed with gusto before us are neither here nor there and is of no avail. When a law provides that a particular thing should be done in a particular way, only that way and none other shall be accepted. It also means that the cases of Emeka v. Okoroafor (2017) 11 NWLR (PT 577) 410 @ 469 and Mgbenwelu v. Olumba (2017) 11 NWLR (PT 1558) 169 @ 19 cited by Chief Kuttu, which cases are undoubtedly good authorities for the principles established by them, namely that an affidavit of service by the very process server attesting is prima facie proof of service, do not apply here where the bailiff who swore to the affidavit of service did not himself serve the processes in issue.
In fact Mr. Vonchir Wilson’s said two oaths – affidavit of service and oath in open Court – are even
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inadmissible hearsay evidence in so far as the issue of service of processes on Mr. Igoche is concerned. See Subramanian v. Public Prosecutor (1956) 1 W.L.R. 965 @ 970 cited with approval by the Apex Court in Omorhirhi v. Enatevwere (1988) LPELR-2659 (SC) p 32-33, (1988) NWLR (PT 73) 746 where it was said that:
“Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.”
At any rate, why was the said Delivery Note of Fedex allegedly submitted to Mr. Wilson by Fedex not also produced? After all the same head Bailiff asserted that he had it and “will supply it, as the photocopy is attached.” His failure to carry out that undertaking amounts in the circumstances to withholding evidence and should have attracted the presumption in Section 167(d) of the Evidence Act 2011 that the document was withheld by him because
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it would have been unfavorable to his assertion if produced. In fact it is difficult in the circumstances to resist the inference that the said Delivery Note does not exist at all and Bailiff Wilson was simply bluffing when he said he had it and would even produce it.
Section 125 of the Evidence Act 2011 even forbids proof of contents of documents like the Delivery Note by oral evidence as the bailiff tried to do with his evidence on the contents of the said Delivery Note. That provision (Section 125 of the Evidence Act 2011) reads:
“All facts, except the contents of documents, may be proved by oral evidence.”
See further Abubakar v. Waziri (2008) 14 NWLR (PT 1108) 507 @ 534 (SC), (2008) LPELR-54 (SC) p.25, Okpalugo v. Adeshoye (1996) 10 NWLR (PT 476) 77 @ 102-103 (SC). Documents if available ought to be produced as they speak for themselves, the ipse dixit of witness on such transaction is insufficient: F.A.T.B. Ltd v. Partnership Investment Co. Ltd (2003) 18 NWLR (PT 851) 1 @ 74 (SC)
Even the bailiff’s oral testimony that he repeatedly called Mr. Igoche’s telephone line despite already having a Delivery Note
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of Fedex Courier Service evidencing service on him is hard to believe. If he really had a Delivery Note of service from the process server why would he waste his time and money to repeatedly call Mr. Igoche up to the very morning of the case as he claims? The bailiff was clearly making up a story and an improbable one for that matter which the lower Court had no business believing. Probability has always been the surest path to the shrine of truth and justice, so a celebrated Judge, Oputa, J.S.C., said in Dibiamaka & Ors v Osakwe & Ors (1989) 2 NSCC 258 @ 260. Things that are not consistent with the natural course of events and human conduct in similar circumstances are regarded as improbable and the Court enjoined not to believe them: Section 167 of the Evidence Act 2011. If a trial Court chooses to believe an impossible and improbable story, an appellate Court has a duty to reverse any decision based on such belief:Onuoha v. The State (1989) 1N.S.C.C. 411 @ 418; (1989) 2 NWLR (PT 101) 23 @ 32.
And why did he not tender his notes of his said phone calls or better still even his handset to support his assertion that he actually made calls
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to Mr. Igoche? That is the best evidence of those calls and not his improbable self-corroborating oral evidence. One may even ask why he did not simply send a text message to Mr. Igoche, assuming, without conceding, that he even needed to pass any further information on the 29/11/2017 to Mr. Igoche given the service already said to have been done on him by Fedex Courier. Stories should not just be told, they should be probable and make sense. That was not the case here.
The other argument of Chief Kuttu that appellants had exhausted their two adjournments under the Rules of the lower Court by asking for adjournment on the 23/10/2017 and 01/11/2017 and so not entitled to any further adjournment on 29/11/2017 is also unavailing. In the first place, it is not true that appellants asked for adjournment on 23/10/2017. What happened on 23/10/2017 (as shown at pages 322 -329 of the records) is that 160th appellant, Nasiru Sabo, was cross-examined on the making of the terms of settlement by both counsel following which the Court itself adjourned the proceedings.
But even assuming that Chief Kuttu was correct, exhaustion of their two days’ adjournment
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privilege under the Rules of that Court was not the reason advanced by the lower Court on 29/11/2017 or what he, Kuttu, prayed it on that day to foreclose appellants, so respondents cannot properly rely on that ground to sustain the steps the lower Court took on 29th and 30th Nov. 2017 without first filing a Respondent’s Notice as required by Order 9 R. 2 of the Rules of the Court of Appeal 2016: see Orji v. Zaria Ind. Ltd (1992) 1 NWLR (PT 216) 124 @ 128 (SC); Kayili v. Yilbuk (2015) 7 NWLR (PT 1457) 26 @ 86 (SC); Organ v. N.L.N.G Ltd & Anor (2013) 16 NWLR (PT 1381) 506 @ 530; Obi v. INEC (2007) ALL FWLR (PT 378) 1116 @ 1198, (2007) 11 NWLR (PT 1046) 560.
In conclusion, I resolve issues 1 and 2 in favour of appellants. I hold that Mr. Igoche of counsel for appellants was not served hearing notice of the sitting of the lower Court of 29th November 2017 and so did not voluntarily forfeit appellants’ right to cross-examine 1st appellant. Consequently, appellants’ right to fair hearing was breached by the lower Court when it foreclosed them from cross-examining 1st appellant and proceeded to enter judgment on 30/11/2017 on the basis of
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the disputed terms of settlement filed on 26/4/2017.
Breach of right to fair hearing denies the Court of jurisdiction and nullifies any proceedings conducted subsequent to such breach; it is no answer to a complaint of breach that the same result would have been reached even in the absence of the breach:Salu v. Egeibon (1994) 6 NWLR (PT 348) 23 @ 44 (SC), Citec International Estates Ltd v. Francis (2014) 8 NWLR (PT 1408) 139 @ 163 (SC), Ahmed v. Ahmed (2013) ALL FWLR (PT 699) 1025 @ 1070 (SC). In Oyeyemi v. Commissioner (1992) 1 NSCC 371 @ 384 where it was held by the Apex Court (at p. 384) that:
“The effect of breach of rule of fair hearing is to render the hearing liable to be set aside or declared invalid by the Court: the Court will look at the situation as if such a hearing never took place. The issues in litigation will be set back to the situation before the decision was taken.”
That is what shall happen in this case. The proceedings of the lower Court of 29/11/2017 and 30/11/2017 including its judgment all of which were conducted and arrived at without service of hearing notice on appellants and so reached/conducted in
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breach of their right to fair hearing are here declared a nullity and, for avoidance for doubt, set aside and parties returned to status quo before the said offensive proceedings.
In the light of the order of retrial which I intend to make here and in order not to jeopardize the retrial of the case, I shall refrain from deciding issues 3 and 4 of the appeal which are about the validity or otherwise of the disputed terms of settlement and whether it was the product of an agreement between the parties.
In effect, the appeal succeeds and is allowed and the proceedings of the lower Court of 29/11/2017 and 30/11/2017 including its judgment are here declared a nullity and, for avoidance of doubt, set aside and an order for retrial of the case by another judge of the National Industrial Court of Nigeria is here made.
Appellants are entitled to costs of this appeal which I assess at N300,000.00 (Three Hundred Thousand Naira) against respondents.
TANI YUSUF HASSAN, J.C.A.: I had the privilege of reading in draft the lead judgment just delivered by my learned brother, BOLOUKUROMO MOSES UGO JCA. I agree in entirety with the reasoning and conclusion
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in allowing the appeal and setting aside the judgment of the lower Court. I abide by the order as to costs.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had the opportunity of reading before now the judgment just delivered by my learned brother BOLOUKUROMO MOSES UGO, JCA. I agree with his reasoning and conclusion that the appeal should be allowed for lack of service of Hearing Notice on the Appellants which is in breach of the fundamental principle of fair hearing. Let me add that the bottom line to the doctrine of fair hearing envisaged by virtue of Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 is that in the determination of civil rights and obligations of citizens, is a trial conducted according to all legal rules to ensure that justice is done to all parties. See N. S. ENG. CO. LTD V. EZENDUKA (2002) 2 NWKR (Pt. 748) 469 at 499, ALAMIEYESEIGHA V. IGONIWARI (No. 2) (2007) 7 NWLR (Pt. 1034) 524 at 588, MIL. GOV. LAGOS STATE AND 4 ORS V. ADEYIGA AND ORS (2012) 2 SC (Pt. 1) 68.
In result, I also allow the appeal and abide by the consequential orders including the order on cost against the Respondents.
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Appearances:
Appellants filed brief of argument but were unrepresented at the hearing For Appellant(s)
Chief G.M. Kuttu, with him, B.N. Jattau Esq., D.J. Gussen Esq., Sarah Farinto Esq., C.R. Gomwalk Esq. and S.E. Dawam Esq. For Respondent(s)
