MR. JULIUS OGBOBE & ORS V. Mr. IDU OLIJI & ORS
(2011)LCN/4695(CA)
In The Court of Appeal of Nigeria
On Monday, the 11th day of July, 2011
CA/E/88/2009
RATIO
VOID ACTS: WHAT IS THE POSITION OF THE LAW WHEN AN ACT IS DECLARED NULL AND VOID
…it is well settled that when an act is declared null and void, the position of the law is that the act never took place; it is completely wiped off and considered as extinct and deemed never to have existed – see Ladoja v. INEC & 3 Ors. (2007) 12 NWLR (Pt.1047) 119 SC. PER AMINA ADAMU AUGIE, J.C.A
NEMO JUDEX IN CAUSA SUA: POSITION OF THE LAW WHERE A MEMBER OF A CUSTOMARY COURT HAS AN INTEREST IN A CAUSE OR MATTER WITHIN THE COURT’S JURISDICTION
Nemo judex in causa sua is Latin for the fundamental principle of natural justice that “no man can be a Judge in his own cause” and the rule applies also to any cause in which that person has an interest – see The Longman Dictionary of Law. See also Section 67 of the Customary Court Law of Enugu State, which specifically states that when a Member of a Customary Court has an interest in a cause or matter within the Court’s jurisdiction that Member shall before the commencement of any proceeding declare his interest and shall thereafter withdraw from sitting on that particular cause or matter. In this case, the lower Court found as a fact that one of the Members of the trial Customary Court was the 1st Appellant’s brother, which, of course, renders the trial a nullity, and the proper order to make was to set aside that decision, without more – see Oni V. Fayemi (2008) 8 NWLR (Pt. 1089) 400, Adigun V. A.-G. Of Oyo State (Pt. 53) 678 SC, Tamti V. N.C.S.B. (2009) 7 NWLR (Pt. 1141) 631. PER AMINA ADAMU AUGIE, J.C.A
RIGHT TO FAIR HEARING: CONSEQUENCE OF A PROCEEDING CONDUCTED IN BREACH OF THE RULE OF NATURAL JUSTICE OF FAIR HEARING
…Salu V. Egeibon (supra), wherein Adio, JSC stated as follows – “The consequence of a breach of the rule of natural justice of fair hearing is that the proceedings in the case are null and void – – If the principle of natural justice is violated, it does not matter whether if the proper thing had been done the decision would have been the same; the proceeding will still be null and void. In other words, if the principles of natural justice are violated in respect of any decision, it is immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision. – – In the circumstance, the proper order to make is one of affirming the order of the court below for a retrial of this case before another Judge of the High Court – -” In effect, a breach of fair hearing strikes deeply at the very roots of a trial, and renders the whole trial a nullity – see Chime V. Onyia (2009) 2 NWLR (Pt. 1124) 1 at 77, where this Court per Saulawa, JCA, added – “it is indeed trite that where the issue of breach of fair hearing is raised and established, it would amount to a wasteful academic exercise for the Court to proceed to determine the rest of the issues, if any, therein”. PER AMINA ADAMU AUGIE, J.C.A
FUNDAMENTAL HUMAN RIGHTS: POSITION OF THE LAW WHERE AN APPELLANT SHOWS THAT THERE IS AN INFRINGEMENT OF THE PRINCIPLE OF NATURAL JUSTICE AGAINST HIM
…Adigun V. A.-G. Oyo State (supra), where Eso, JSC aptly said – “Once an Appellant shows that there is an infringement of the principle of natural justice against him, it is my view that he needs show nothing more. The finding that there is an infringement of the principle is sufficient to grant him a remedy. This is not a case where one, after showing injuria would need to proceed to show damnum. The injuria herein, is proof positive of damnum”. PER AMINA ADAMU AUGIE, J.C.A
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
CHUKWUDUMEBI SAMUEL OSE Justice of The Court of Appeal of Nigeria
Between
1. MR. JULIUS OGBOBE
2. MR. RICHARD IDU
3. MR. OKORO UTAZI
[For themselves and on behalf of Ajuona Village, in Adani, Uzo-Uwani LGA, Enugu State] Appellant(s)
AND
1. Mr. Idu Oliji
2. Mr. Mathew Okoro
3. Mr. James Mba
4. Mr. Richard Ugbuaja
5. Mr. Gregory Otita
(For themselves and on behalf of Otuguzo Village, in Adani, Uzo-Uwani LGA, Enugu State) Respondent(s)
AMINA ADAMU AUGIE, J.C.A (Delivering the leading Judgment): The action that led to this appeal originated from the Customary Court, Ogurugu in Enugu State. The Appellants, as Plaintiffs “for and on behalf of Ajuona Village in Adani, Uzo-Uwani LGA, Enugu State”, sued the Respondents, also in a representative capacity, and claimed as follows –
(a) A Declaration that the Plaintiffs are entitled to the customary right of occupancy over the piece/parcel of land – – subject matter of this suit.
(b) An Order of perpetual injunction restraining the defendants, whether by themselves, servants, agents, privies, workmen, from trespassing into the said piece of land.
(c) General damages for trespass”.
The Oguruku Customary Court had Chief F.O. Okeji, an President, and Chief E.O. Ogbobe and Chief M.N. Nnalue, as Members of the Court.
The Appellants called five witnesses, while the Respondents called four witnesses at the trial, and after a visit to the locus in quo, the Customary Court presented a “Summary” wherein they ruled that the –
i. Defendants are liable to the owners to the Plaintiff’s claim. This Court hereby declares the Plaintiffs rightful owners of the land in dispute.
ii. It is unnecessary to award cost for damages where there was evidence of damages to the Plaintiffs.
iii. The Court deems it fit to accommodate the settlers in the camp, but should lease with the Plaintiffs for rent subsidies without prejudice.
Dissatisfied with the decision of Customary Court, the Respondents appealed to the High Court, Nsukka, with a Notice of Appeal containing four Grounds of Appeal, and with the leave of that Court, they filed ten Additional Grounds of Appeal. Ground 3 simply complains that they “were not given a fair hearing” and Ground 10 complains as follows –
The trial Court gravely erred in law and violated the Defendants/Appellants’ right to fair hearing by being apparently biased against the Defendants – –
PARTICULARS OF ERROR
a. The Judgment of the trial Court was pre-determined and already arrived at before the trial even began. The trial Court went on to try the case when a Member of is in law disqualified by virtue of nemo judex in causa sua.
b. The trial Court acted according to dictates of the Plaintiff/Respondents whose brother is on the Bench (as a Member of the trial Court) trying the matter and using his influence to get the Judgment for his village (Plaintiff/Respondents) and the Judgment was purely based on what the Plaintiff/Respondents accepted to concede to the Defendants/Appellants and not according to the evidence before it.
They also filed a 47-page brief of argument that does not contain any issues for determination. The Appellants, who were the Respondents at the appellate High Court, filed a 30-page brief of argument, wherein they formulated 8 issues for Determination. The Respondents then filed a 30-page Reply on points of law. After the adoption of the said briefs by the respective counsel, Hon. Justice R. O. Odugu, who was sitting in an appellate capacity, delivered his Judgment on the 30th of June 2008, wherein he stated that the only issue for Determination in the appeal is –
“What should this Court do to ensure that there is substantial justice to the parties considering the Record of Proceedings and Judgment of the Customary Court in then light of the issues canvassed in favour of and against the relevant Grounds of Appeal?”
Observing that the alleged relationship was not disclosed in the record, he added “this Court can draw an inference from the processes filed by the parties”, and after considering Grounds 3 and 10, he held as follows –
“- – The Appellants have alleged in this appeal that Chief Eric O. Ogbobe and Mr. Julius Ogbobe are blood relations and both from Ajuona village. But the Respondent’s only reply is that this fact is not on record; and no more.
By Section 67 of the Customary Court Law of Enugu State contained in the Revised Laws of Enugu State 2004, it is provided as follows –
“When a Member of a Customary Court has an interest in a cause or matter within the Court’s jurisdiction that Member shall before the commencement of any proceeding declare his interest and shall thereafter withdraw from sitting on that particular cause or matter”.
I agree – – that the presence of Eric Ogbobe a member of the Customary Court shows real likelihood of bias. His alleged latent connection with the 1st Respondent ought to have precluded him from participation in the hearing and determination of the case. The failure of Chief Eric O. Ogbobe to disclose his interest in the subject matter of the suit before the Customary Court and withdraw from participation during the trial of the case is in breach of the rules of Customary Court. The trial and Judgment of the Customary Court ought in my humble view to the declared null and void – -“.
Despite that conclusion, he proceeded to consider the issues arising from Grounds 1 and 6 of the Appellants’ Grounds of Appeal, and held –
“It seems to me that the trial Customary Court did not properly evaluate the evidence adduced by the parties in the light of what the Court saw during the visit to the locus in quo. The Customary Court was completely in error when it arrived at its decision. The Court’s improper evaluation of evidence has occasioned a miscarriage of justice, and I so hold. The Judgment of the Court is against the weight of evidence. In effect Grounds 1, 3, 6 and 10 of the Grounds of Appeal succeeds. The Judgment of the Customary Court Ogurugu – – is hereby set aside. I enter a Judgment in this appeal dismissing the Plaintiffs/Respondents claims – – I award costs assessed at N5, 000.00 – -“.
Aggrieved by the decision, the Appellants appealed to this Court with a Notice of Appeal containing four Grounds of Appeal, and in their brief of argument prepared by F.M. Ani, Esq., it was submitted that from the four Grounds of Appeal, the issues that call for determination are as follows-
a. Whether or not the learned trial Judge was right when he held that the trial and Judgment of the Customary Court in his humble view ought to be declared null and void on the grounds of bias and yet proceeded to assess the evidence and thereafter entered judgment in the appeal dismissing the Plaintiffs/Appellants claim in the lower Court with cost.
b. Whether or not the learned trial Judge was right when he failed to give equal chances in the evaluation of evidence of the parties and made no findings on material issues of fact before arriving at its decision.
The Respondents, however, submitted in their own brief of argument settled by M.C. Nwande, Esq., that the issues for Determination are –
(i) Whether where the proceedings of a trial Court is a nullity by virtue of a breach of the rules of fair hearing, can such a proceedings be merely struck out with an order of re-trial made or dismissed having been vitiated?
(ii) Whether the submissions of counsel constitute evidence; whether appellate Court is bound in law to consider all the grounds of appeal and/or issues for determination, all the submissions of counsel and make findings on all of them seriatim.
(iii) Whether the Appellants have abandoned Ground two of the appeal and, Grounds 3 and 4 are incompetent by virtue of the Appellants’ failure to obtain the leave of the appellate High Court below or of this Hon. Appeal Court according to Sections 241 (2) (c) and 242 of the 1999 Constitution of the Federal Republic of Nigeria?
Apparently, the parties are not challenging the lower Court’s finding that Chief E.O. Ogbobe of the Customary Court is the 1st Appellant’s brother, and by Section 67 of the Customary Court Law, the trial and Judgment ought to be declared null and void. The bone of contention appears to be the right order to make in the circumstances, and since it touches on jurisdiction, that issue must be resolved first before any other issues.
The Appellants’ contention is that when a trial is declared null and void, there was no trial at all and the purported trial is of no effect, citing Adefulu V. Okulaja (1996) 9 NWLR (part 475) 668, Ladejo V. INEC (2007) 7 SC 99. They submitted that the lower Court erred in law by proceeding to assess and evaluate evidence in a proceeding, which is a nullity and gave Judgment there-from; and that where a trial is null and void due to substantial irregularity of such magnitude as bias, the proper order the Court should make is an order of retrial, citing Yesufu Ogbedengbe & Ors. V. Chief T. B. Balogun (2007) 3 SC (Pt. 11) 71.
The Respondents, however, submitted that an order of retrial, where a trial has been completely vitiated due to a breach of fair hearing, is tantamount to giving the Appellant an illegal and undeserved second bite at the cherry, and gives him the chance to come back with an amended case to continue a battle that he had hitherto completely lost.
Furthermore, that the law abhors this since it causes a serious miscarriage of justice, citing Duru V. Onwumelu (2001) 92 LRCN 3148, that the violation of the rules of fair hearing is always very serious, fundamental and fatal, and where it occurs, the entire trial is vitiated completely, no matter how well it was conducted, citing Ekpeto V. Wanogho (2005) 123 LRCN 170 at 1842; that the Court has inherent powers to set aside a Judgment, which is a nullity in the sense that the Judgment was delivered without jurisdiction, citing Ndigwe V. Nwude (1999) 11 NWLR (Pt. 626) 314 SC; that the reason for an application to set aside an order or Judgment tainted with “voidness” is that until set aside, the order or Judgment subsists and remains effectual and binding, citing Ndigwe V. Nwude (supra), that an order of retrial is not appropriate in this case where it is clear that their case failed in toto, and no irregularity is apparent on the record or shown to warrant such an order; and that the lower Court made a proper order of dismissal of the Appellants’ case, citing Udih V. Idemudia (1998) 56/57 LRCN 3/84.
It was further argued that the Customary Court failed to treat all the issues in controversy, and there are sufficient materials before the lower Court to resolve the matters; that the law is that in this situation, an order of retrial will not be made, citing State V. Ajie (2000) 80 LRCN 2513; that
it is trite that the Rules of Courts are not mere rules, but partake of the nature of subsidiary legislations by virtue of Section 18 (1) of the Interpretation Act and therefore, have the force of law, which is why Rules of Courts must be obeyed, citing M.V. Arabella V. NAIC (2008) 162 LRNC 197 SC; and that where there is non-compliance with the Rules of Court (as it applies to Section 67 of the Customary Court Law, the Court should not remain passive and helpless, and there must be a sanction, otherwise, the purpose of enacting the rules, will be defeated, thus, all the Appellants’ submissions on the issue is of no consequence.
The Appellants filed a Reply Brief, wherein it was argued that it is that it is trite that whatever is the irregularity that makes a proceedings null and void inclusive of an irregularity emanating from a breach of the rules of fair hearing, the effect remains that there was no trial at all and that the purported trial is of no legal effect in which case retrial or rehearing is the only appropriate order for the appellate Court to make, citing Salu V. Egeibon (1994) 6 NWLR (Pt. 348) 23 SC. This Court was therefore, urged to discountenance the Respondents’ submissions for being “not only misleading but also a distortion of the position of our law”.
I agree with the Appellants, and I will not hesitate to quickly say so. The case will have to go back to the Customary Court for trial de novo. After all, it is well settled that when an act is declared null and void, the position of the law is that the act never took place; it is completely wiped off and considered as extinct and deemed never to have existed – see Ladoja v. INEC & 3 Ors. (2007) 12 NWLR (Pt.1047) 119 SC. Nemo judex in causa sua is Latin for the fundamental principle of natural justice that “no man can be a Judge in his own cause” and the rule applies also to any cause in which that person has an interest – see The Longman Dictionary of Law. See also Section 67 of the Customary Court Law of Enugu State, which specifically states that when a Member of a Customary Court has an interest in a cause or matter within the Court’s jurisdiction that Member shall before the commencement of any proceeding declare his interest and shall thereafter withdraw from sitting on that particular cause or matter. In this case, the lower Court found as a fact that one of the Members of the trial Customary Court was the 1st Appellant’s brother, which, of course, renders the trial a nullity, and the proper order to make was to set aside that decision, without more – see Oni V. Fayemi (2008) 8 NWLR (Pt. 1089) 400, Adigun V. A.-G. Of Oyo State (Pt. 53) 678 SC, Tamti V. N.C.S.B. (2009) 7 NWLR (Pt. 1141) 631.
See also Salu V. Egeibon (supra), wherein Adio, JSC stated as follows –
“The consequence of a breach of the rule of natural justice of fair hearing is that the proceedings in the case are null and void – – If the principle of natural justice is violated, it does not matter whether if the proper thing had been done the decision would have been the same; the proceeding will still be null and void. In other words, if the principles of natural justice are violated in respect of any decision, it is immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision. – – In the circumstance, the proper order to make is one of affirming the order of the court below for a retrial of this case before another Judge of the High Court – -”
In effect, a breach of fair hearing strikes deeply at the very roots of a trial, and renders the whole trial a nullity – see Chime V. Onyia (2009) 2 NWLR (Pt. 1124) 1 at 77, where this Court per Saulawa, JCA, added –
“it is indeed trite that where the issue of breach of fair hearing is raised and established, it would amount to a wasteful academic exercise for the Court to proceed to determine the rest of the issues, if any, therein”.
See also Adigun V. A.-G. Oyo State (supra), where Eso, JSC aptly said –
“Once an Appellant shows that there is an infringement of the principle of natural justice against him, it is my view that he needs show nothing more. The finding that there is an infringement of the principle is sufficient to grant him a remedy. This is not a case where one, after showing injuria would need to proceed to show damnum. The injuria herein, is proof positive of damnum”.
So, the Appellants are right; the lower Court fell into serious error when it proceeded to consider other issues in a proceeding that was a nullity. The Respondents also missed the point completely. The Appellants having or not having a second bite at the cherry can never be an issue because in the eyes of the law, there was no trial at all in the first place. The end result is that the appeal succeeds and is hereby allowed.
The decision of the lower Court in its Judgment delivered on the 30th of June 2008 is, therefore set aside, and in its place, I enter an order remitting the case for trial de novo. There will be no order as to costs.
ABDU ABOKI, J.C.A: I have read in advance the judgment delivered by my learned brother Amina Adamu Augie JCA. I agree with the reasoning and conclusions arrived at in the judgment. I abide by the consequential order made therein.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A: I had the opportunity to read in draft the judgment just delivered by my learned Brother, AMINA ADAMU AUGIE JCA. I am satisfied with his reasoning and the conclusion he arrived at. I do not intend to add or subtract anything
I therefore adopt the conclusion as mine. I also abide by all the orders made therein.
Appearances
F. M. Ani, Esq.For Appellant
AND
M.C. Nwande, Esq.For Respondent
