Prof. L. P. ORAJEAKA v. EMMAN – OWUMS OWUAMALAM PHD
(2011)LCN/4474(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of April, 2011
CA/E/197/2009
RATIO
RECORD OF APPEAL: PROPER PROCEDURE TO CHALLENGE A COURT’S RECORD; PROPER ORDER TO BE MADE BY THE APPELLATE COURT WHERE WHERE THE RECORD OF APPEAL PRESENTED IS INCOMPLETE OR MUTILATED
The proper procedure of challenging a court record is by a sworn affidavit sewed on the judge or the Registrar of the Court concerned. See Daramola v. A.G. Ondo State (2000) FWLR pt. 6 page 997. Mokwe v. Williams (1997) 11 NWLR pt. 528 pages 309 where the Record of Appeal presented is incomplete or mutilated, the only option open to the appellate court will be to order a trial de novo. PER ABDU ABOKI, J.C.A.
FAIR HEARING: POSITION OF THE LAW WHERE AN ADJUDICATING BODY DENIES A PARTY OF FAIR HEARING
Where an adjudicating body denies a party of fair hearing, such an act will be considered contrary to the principle of natural justice and a violation of the 1999 constitutional provision which guaranteed the right to fair hearing and to that extent any decision of the adjudicating body will be rendered null and void. PER ABDU ABOKI, J.C.A.
DUTY OF THE COURT: WHETHER A COURT IS OBLIGED TO ENTERTAIN AND DETERMINE ALL APPLICATIONS FILED PRECEDING THE FINAL DETERMINATION OF ANY SUIT BROUGHT BEFORE IT
It is the duty of every court to entertain and determine all applications brought before it. It follows therefore that all applications filed preceding the final determination of any suit before a court of law must be entertained before judgment is delivered. It is an irrelevant consideration that the application is down right stupid, unmeritorious or even an abuse of the court’s process. See Nitel Plc. v. Mayaki (2007) 4 NWLR pt. 1023 page 173 at 188. Mokwe v. Williams (1997) 11 NWLR pt. 528 page 309. Ani v. Nna (1996) 4 NWLR pt. 440 page 101 at 102. Okoro v. Okoro (1998) 3 NWLR pt. 540 page 65. Eriobuna v. Obiorah (1999) 8 NWLR pt. 616 page 622.The duty of the court to entertain an application is not discharged because the judgment had already been prepared but yet to be delivered, when an application which may be relevant to the substance of that judgment was filed. The application should be considered and determined before the judgment may or may not thereafter be delivered. See Mobil Producing (Nigeria) Unlimited v. Monokpo (2003) 18 NWLR pt. 852 page 282. Savana Bank (Nig) Ltd. v. S.I.O. Corporation & OFS. (2001) 1 NWLR pt. 693 page 194. Mokwe v. Williams (supra). PER ABDU ABOKI, J.C.A.
FAIR HEARING: CONSEQUENCE OF A PROCEEDING CONDUCTED IN BREACH OF RIGHT TO FAIR HEARING
It is trite that once there is a breach of fair hearing, the whole proceedings in the cause of which the breach occurred and the decision reached by the court becomes a nullity. See ANPP v. INEC (2004) 7 NWLR pt. 871 page 76. All Peoples Party v. Ogunsola (2002) 5 NWLR pt. 761 page 484. PER ABDU ABOKI, J.C.A.
INTERPRETATION OF STATUTE: INTERPRETATION OF THE PROVISION OF ORDER 37 OF THE HIGH COURT OF ANAMBRA STATE (CIVIL PROCEDURE) RULES 2006 AS TO WHETHER A DECISION ARRIVED AT IN AN APPLICATION FOR TRANSFER OF A CAUSE FROM ONE JUDICIAL DIVISION TO ANOTHER JUDICIAL DIVISION IS APPEALABLE
The provisions of the said Order relevant to this matter are rules 1(1), (2), (3), (4), 2(1) (2) (3) (4), 3(1), 7(1) & (2) and they are hereby adumbrated as follows: (1) The transfer of any causes or matter from one Judge to another Judge in the same judicial division shall lie at the discretion of the Chief fudge or any other Judge designated by the Chief Judge as their judge in charge of administrative duties in the judicial division (misc). (2) The transfer under sub-rule (1) may be at the instance of a party to the suit or suo moto at the discretion of the Chief Judge or such other Administrative Judge aforementioned. (3) A party seeking o transfer under sue-rule (1) shall -file a written application in Form 46 at the Registry of the Court where the suit is pending. (4) The Registrar shall transmit the application to the Chief Judge or the appropriate Judge and shall inform the applicant if the application be refused or both parties if the application be granted. 2(1) The transfer of any cause or matter from one judicial division to another judicial division shall lie at the discretion of the Chief Judge. (2) Such transfer may be at the instance of party to the suit or suo moto at the discretion of the Chief Judge. (3) A party seeking a transfer under the rule shall file a written application in Form 46 at the registry of the court where the suit is pending. (4) The Registrar shall transmit the application to the Chief Judge and shall take similar action as in sub-rule (4) of rule 1 of the order when the decision of the Chief Judger is communicated to him. 3.(1) The transfer of a cause or matter may be expressed to be from one court to another court, or from a named Judge to another named Judge. Provided that where a transfer is to name Judge and such Judge for any reason fails to conclude the proceedings his successor can take over the case de novo without further order of transfer. 4(1) ………………………………………… (2) …………………………………………… 5 …………………………………………….. 6(1) ………………………………………….. (2) ……………………………………………. 7(1) An application for transfer under rules 1, 2, and 4 operates from the date thereof as o stay of proceedings in the High Court or the magistrate’s court where the suit was pending and renders any proceedings after such date in such court null and void. (2) For the avoidance of doubt, the transfer of a case or matter under the preceding rules, is an administrative act whether or not the authority to effect the transfer be derived from statutory provisions and is not subject of a review by any court or appeal, In the instant case, the Appellants who were the applicant at the trial court sought for this matter filed at the Ihiala Judicial Division to be transferred to another Judge in the Ihiala Judicial Division. The provisions of Order 37 Rules 1(3) provide that a party seeking a transfer must file a written application at the Registry of the court where the suit is pending. However, in the present case, the Appellants instead of filing their application at the Registry of the Ihiala High Court, where the suit was pending, took their application to the Registry of the Awka Judicial Division where the matter was not pending. Order 37 Rule 2(1) & (3) of the High Court of Anambra State (Civil Procedure) Rules 2006 further provides that even where the application is for transfer from one Judicial Division to another Judicial Division, it must be made at the registry of the court where the matter is pending. In the instant case, the Appellants are in violation of the provision of order 37 rules 1 (3) of the High Court of Anambra State (Civil Procedure) Rules 2006. They cannot therefore question the validity of the judgment of the lower court which has not taken into account the purported application for transfer. Order 37 Rule 7(2) of the High Court of Anambra State High Court (Civil Procedure) Rules 2006 also stipulates that an application for transfer is an administrative matter and that it is not appealable. The Supreme Court said in a similar matter on an application for transfer in the case of Duke v. Aduba (2000) 3 NWLR pt. 1 647 page 1 at 10 thus:- ‘It was a routine administrative matter unsuited for the importation of the concept of judicious and judicial exercise of discretion that it was not o judicial or quash judicial function properly so-called. Consequently, a decision arrived thereat is not one that is appealable to the Court of Appeal’. The opinion that an administrative matter such as that stipulated under order 37 of the High Court of Anambra State (Civil Procedure) Rules 2006 is not suitable for the exercise of jurisdiction by the Court of Appeal. The exercise of discretion by the Chief Judge under Order 37 of the High Court of Anambra State (Civil Procedure) Rules 2006 does not qualify as a decision within the provisions of Section 318(1) of the 1999 constitution. Such exercise of discretion by the court are not one of those decisions that are appealable as of right to the Court of Appeal under section 241 (1) or by leave under section 242 (1) of the Constitution of the Federal republic of Nigeria 1999 Interpreting the provisions of Order 19 Rule 5(1) of the Anambra State High Court (Civil Procedure) Rules 1988 which is in pari-materia to the provisions of Order 37 Rule 1(3) & (4) of the High Court of Anambra State (Civil Procedure) Rules 2006. The Supreme Court held per Karibi- Whyte JSC in Dike v. Aduba (supra). ‘It seems to me that in exercising the power under Order 19 Rule 5(1), it is sufficient if the administrative Judge or Chief Judge as the case may be is satisfied that there are good reasons for the transfer. It follows therefore that having made this decision either way, it is not subject to appeal. This is because a decision under Order 19 Rules 5 (1) (2) does not fall within the definition of ‘decision’ under section 277(1) of the 1979 constitution, now section 318(1) of the constitution 1999 – See Kalu v. Odili (1992) 5 NWLR pt. 240 page 130 at 189. PER ABDU ABOKI, J.C.A.
JUSTICES
HON. JUSTICE MOHAMMED L. TSAMIYA Justice of The Court of Appeal of Nigeria
HON. JUSTICE ABDU ABOKI Justice of The Court of Appeal of Nigeria
HON. JUSTICE SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
1. Prof. L. P. ORAJEAKA,
2. THE REGISTRAR, ANAMBRA STATE UNIVERSITY, ULI ANAMBRA STATE UNIVERSITY, ULI Appellant(s)
AND
EMMAN – OWUMS OWUAMALAM PHD Respondent(s)
ABDU ABOKI, J.C.A. (Delivering the leading judgment): This is an appeal against the Judgment of C.E.K. Anigbogu J. of the High Court of Anambra State, Ihiala Judicial Division, sitting at Ihiala delivered on the 10th December, 2008.
The facts of the case briefly are that on the 26th June, 2008, the Respondent received a letter from the committee on the investigation of allegation and counter-allegations’, constituted by the Appellants, inviting him for a “chart” on the 23rd June 2008. There were no details of what was to be discussed during the said ‘chart’. The Respondent wrote back telling the committee that he received the letter on the 26/6/2008, after the date for the ‘chart’ had elapsed and he suggested new dates because he was sick.
On the 3rd of October 2008, the Respondent received another letter reference No. ANSU/VC/M/MCIT/02 of 22nd September 2008, signed by the 1st Appellant informing him that he has been “suspended with immediate effect” from duty as a lecturer at the Anambra State University, Uli and also banned from entering the premises of both the Uli and Igbariam Campuses of the University.
The Respondent immediately wrote to the 1st appellant protesting against his suspension from duty. He gave nine reasons which in his opinion made the suspension illegal and requested the 1st Appellant to retract and reverse the decision.
When the Appellant refused to reverse the decision, the Respondent filed an action at the High Court commenced by way of judicial review seeking the following reliefs:-
(a) An order of court bringing the suspension of the applicant on a report of an adhoc committee set up by the officers of the 3rd Appellant which letter of suspension is dated 22nd of September, 2008 and signed by the 1st Appellant into the High Court for the purpose of having same quashed.
(b) An order of court quashing the said suspension of the applicant by the respondent as same is without jurisdiction, unconstitutional, null and void abinitio and a breach of the rules of natural justice.
(c) An order of court restoring the applicant to his position by quashing, the unconstitutional suspension complained above.
On the 4th day of November, 2008, the lower court granted the Respondent leave to apply for an order of certiorari to quash the proceedings complained of and it also made an order that the leave granted shall operate as stay to all actions or proceedings related to the subject matter, pending the final determination of the Motion on Notice.
The Respondent had however filed the substantive application on 31/11/2008.
The Appellants through their counsel filed a preliminary objection to the application contending that non-service of the pre-action notice on them was fatal to the Respondents’ application for judicial review.
The learned trial judge heard argument on the said preliminary objection and dismissed same on the 25th November, 2008. The Appellants filed another Notice of Preliminary Objection challenging the competence of the processes filed by the Respondent. In addition, they again filed a counter-affidavit of forty-two paragraphs in opposition to the application for judicial review. The learned trial judge after hearing argument on the Respondent’s application adjourned the matter to 10th December 2008 for ruling. The Appellants claimed that the learned trial judge did not have recourse to the Notice of Preliminary Objection and counter-affidavit they filed, nor afford them the opportunity of addressing the court on their counter-affidavit, before he delivered his ruling on the application for judicial review.
They alleged that the trial judge in the ruling went to town to cite plethora of authorities and quoted copiously from the Anambra State University Law as well as decided authorities, which were not cited by any of the parties to the application and that the Appellants were not given opportunity to react to the said authorities cited by the trial judge. The Appellants contended that there can be no better descend into the arena of conflict than that done by the trial judge as demonstrated in the ruling.
The 1st Appellant on behalf of other Appellants following what he perceived or claimed to be apparent acts of intimidation by the learned trial judge applied to the Chief Judge of Anambra State on the 26th November, 2008 for transfer of the present suit and other cases in which they are involved in that court to another judge in the Ihiala Judicial Division.
The Appellants alleged that despite their application for the transfer of the suit which was timeously brought to the notice of the court below, the court went ahead and delivered its ruling on the 10th December 2008 wherein it quashed the suspension of the Respondent by the Appellants vide letter No. ANS/VC/M/MGT/22 of 22nd September 2008. The court also held that the Appellants had no jurisdiction and were not authorized by the University law to suspend the Respondent.
The Appellants aggrieved by the said ruling appealed to this court and raised eight Grounds of Appeal. The Appellants’ Brief of Argument was dated 1/9/09 and filed on 2/9/09, in it they distilled four issues for determination from the eight Grounds of Appeal filed. The issues are adumbrated as follows:-
(a) Whether the Respondent established a proper case to entitle the Respondent to the order of certiorari the Respondent obtained from the court – Grounds 1, 2, 4, 6 and 8.
(b) Whether Exhibit A, B and C were properly in evidence and if not, whether the other of certiorari ought to have been granted in the face of their exclusion? Ground 7.
(C) Whether failure to consider the Appellant’s counter-affidavit and Notice of Preliminary Objection violated the Appellants’ right to fair hearing and thereby occasioned a miscarriage of justice – Ground 3,
(d) What is the effect of the court below proceeding to deliver judgment during the pending of an application for transfer of the suit to another judge of the High Court – Ground 5?
The Respondent’s brief of argument dated 25/10/10 was filed on 26/10/10. The Respondent formulated three issues for determination from the eight grounds of appeal identified by the Appellants. The issues are reproduced thus:
(1) Whether the order of certiorari granted by the trial court was proper and in accordance with justice of the case (Ground 1, 2, 4, 6, 7 and 8).
(2) Whether the trial court did not consider the Appellants’ counter affidavit and notice of preliminary objection as to occasion a denial of Appellants’ right to fair hearing (Ground 3).
(3) Whether the pendency of an improper and purported application for transfer constitutes a ground of appeal being an administrative matter which is not appealable; or whether the pendency of an improper and purported application for transfer nullifies a trial properly conducted in an open court.
In the cause of writing this judgment, it was discovered that the Record of Appeal as compiled and forwarded to this court on 21/5/09 does not include the daily proceedings of the lower court.
The Deputy Chief Registrar Enugu Division was directed to invite all the parties in the matter to forward to the court if any a supplementary Record of Proceedings containing the said proceedings.
Although the letter was written and dispatched on the 14th March 2011, however until this morning 14/4/2011 when the judgment was read in open court, counsel on both sides did not deem it appropriate or important to comply with the directive from the court.
A careful reading of the Record of Appeal before the court indicates that there is sufficient material to support the consideration of the two issues identified by the court as the only relevant issues for determination in this Appeal. The proper procedure of challenging a court record is by a sworn affidavit sewed on the judge or the Registrar of the Court concerned.
See Daramola v. A.G. Ondo State (2000) FWLR pt. 6 page 997.
Mokwe v. Williams (1997) 11 NWLR pt. 528 pages 309 where the Record of Appeal presented is incomplete or mutilated, the only option open to the appellate court will be to order a trial de novo.In the instant case none of the parties to the Appeal has challenged the record as being incomplete.
The court therefore proceeded with the preparation of the judgment on the presumption that the record of Appeal compiled and submitted to this court is the correct record of proceedings of the lower court.
It has been observed from the issues formulated by the parties for the determination of this appeal, that fair hearing has been made an issue. Fair hearing means a trial considered according to all the legal rules formulated to enhance that justice is done to the parties to the cause or matter.
Where an adjudicating body denies a party of fair hearing, such an act will be considered contrary to the principle of natural justice and a violation of the 1999 constitutional provision which guaranteed the right to fair hearing and to that extent any decision of the adjudicating body will be rendered null and void.It is for this reason that I considered issues (b) & (c) of the Appellants and (2) and (3) of the Respondent which are identical to be the only issues for determination in the Appeal.
I however adopt the issues as couched by the Appellants for the determination of this Appeal and renumbered them as issues 1 and 2 as follows:-
(1) Whether failure to consider the Appellant’s counter-affidavit and Notice of Preliminary Objection violated the Appellants’ right to fair hearing and thereby occasioned a miscarriage of justice.
(2) What is the effect of the court below proceeding to deliver judgment during the pending of on application for transfer of the suit to another judge of the High Court?
ISSUE 1
It has been submitted on behalf of the Appellants on this issue, that the learned trial judge erred in law when he proceeded to hear the Respondent’s application for certiorari on 25th November, 2008 and adjourned for judgment to 10th December 2008 without considering the Notice of Preliminary Objection and counter-affidavit of the appellants filed on that 25th November, 2008.
Learned counsel maintained that the Respondent was served with the said processes and that the learned trial judge was aware of the said process in the court’s file but insisted that the processes were filed late and failed to invite the Appellants to address him on the said processes filed.
He argued that the refusal by the learned trial judge to give a hearing to the Appellants’ counter-affidavit filed on 25th November, 2008 amounted to a procedural error which violated the Appellants’ right to fair hearing under Section 36(1) of the 1 999 constitution. He submitted that it is the law that a trial judge is duty bound to consider all applications and defence before him and that failure to do so is a clear denial of the party’s right to fair hearing sufficient enough, to vitiate the trial and allow the appeal thereon. The court was referred to the case of Soefin Consultants Services v. Asuamah (2002) FWLR (pt. 130) page 1729 at 1760.
Learned counsel maintained that the learned trial judge had persisted in the error due to the refusal to allow the Appellants to address the court, when he held at page 125 of the Record of Appeal that:-
‘They attached a counter-affidavit of the Respondents in opposition to the Motion on Notice of the applicant instead of filing it as o separate process and paying for it separately’.
Learned counsel again referred the court to page 130 of the Record of Appeal where he said the trial court somersaulted and held:-
‘Moreover, it will be unfair to visit the Respondent with the consequence of counsel’s non-reference to o counter-affidavit which had been filed and paid for and properly inserted in the court file’.
Learned counsel argued that the trial court did not give the Appellants’ counsel opportunity to address the court on the substantive application after the objection of the Appellants’ counsel to the defect occasioned by absence of the written address to the substantive application by the Respondent.
The court was referred to the cases of :-
Psychiatric Hospitals Management Board vs. E, O. Ejitagha (2000) 6 S. C. (pt. 11) I at 76.
Olaniyan vs. University of Lagos No. 2 (1955) 2 NWLR (pt. 9) 599.
Epereokun vs. University of Lagos (1956) 4 N.W.L.R. (Pt. 34) 162.
Olatunbosu vs. NISER Council (1988) 3 NWLR (pt. 80) 25.
U.N.T.H.M.B. vs. Nnoli (1994) 8 N.W.L.R. pt. (3) (376).
Wilson vs. Attorney-General Bendel State (1985) ` N. S. C.C, (Vol. 6 Pt. 1) 191 at 204.
Federal Council Commission vs. Laoye (1984) 4 S.C. (pt. 11) at pages 46 – 48.
New Nigerian Bonk vs. Oberadiri (1986) 3 NWLR (pt. 29) 387.
Adedeji vs. Police Commission (1967) 1 ALL NLR.
Kanda vs. Government of the Federation of Malaya (1962) A.C. 322 at 337.
Buzugbe vs. Civil Service Commission (1954) 7 S.C. 79.
Council of the Federal Polytechnic Mubi vs. Yusuf (1995) 1 – 2 SC 11 at pages 15/16.
Learned counsel for the Appellants insisted that these cases were not cited to the court, nor was the court addressed on same by counsel for the Respondent. He contended that the Appellants’ counsel was not given the opportunity to distinguish the cases or make submission on the applicability of the cases cited by the learned trial judge in his judgment.
Learned counsel argued that by citing those authorities, the trial judge descended into the arena of conflict and deprived the Appellants right of fair hearing.
He further submitted that where defence has been brought in though irregularly the court will not disregard it, but will see whether it sets up grounds of defence which if proved will be material.
Learned counsel contended that if the trial court had considered the counter-affidavit of the Appellant and the exhibits attached thereon, it would have seem that the Respondent deliberately ignored and failed to take advantage of all the opportunities given to the Respondent by the Adhoc committee, including telephone calls to appear before them on the allegation against him.
Learned counsel urged the court to hold that the failure of the learned trial judge to ask for written addresses or give opportunity to the Appellants to address the court on the substantive case as well as reliance by the court on authorities which the Appellants were not given opportunity to reply to, amounted to denial of fair hearing which occasioned a miscarriage of justice on the part of the Appellants.
It is submitted on behalf of the Respondent that the preliminary objection and the counter-affidavit of the Appellants were well considered by the trial court. The court was referred to the case of F.S. B. Ind. Bank Ltd. v. Imama Nig. Ltd. (2000) 11 NWLR pt. 679 page 620 at 640.
He insisted that the Appellants were not denied fair hearing as alleged.
Learned counsel for the Respondent contended that a party cannot complain of denial of fair hearing where he deliberately refused to be heard since the court cannot force him to do his matter. He argued that in law and equity the Appellants will not be allowed to hold the court to ransom. The court was referred to the case of Bill Construction Co. Ltd. v. Imari & Sons Ltd. (2006) 19 NWLR pt. 1013 page 1 at 14.
Learned counsel for the Respondent contended that the Appellants’ counsel was not desirous of doing their case on the 25th of November, 2008 when the matter came up despite urgings by the court below, yet the trial court at the end of the day considered both the 2nd preliminary objection and the counter-affidavit tucked into the said Notice of Preliminary Objection exhaustively in its judgment.
He referred the court to pages 127-130 of the Records of Appeal and that the exhibits annexed were equally given appropriate and adequate attention by the trial court. He maintained that when the court called on Appellants’ counsel to reply to Egbunonu’s address, it gave him all available opportunity but he refused stubbornly to take it. He submitted that justice in every case is for both parties. Learned counsel insisted that the court accommodated the Appellants interest by exhaustively considering their Notice of Preliminary Objection and their counter-affidavit despite the fact that their lawyer smartly avoided referring to them.
It is the duty of every court to entertain and determine all applications brought before it. It follows therefore that all applications filed preceding the final determination of any suit before a court of law must be entertained before judgment is delivered. It is an irrelevant consideration that the application is down right stupid, unmeritorious or even an abuse of the court’s process. See Nitel Plc. v. Mayaki (2007) 4 NWLR pt. 1023 page 173 at 188.
Mokwe v. Williams (1997) 11 NWLR pt. 528 page 309.
Ani v. Nna (1996) 4 NWLR pt. 440 page 101 at 102.
Okoro v. Okoro (1998) 3 NWLR pt. 540 page 65. Eriobuna v. Obiorah (1999) 8 NWLR pt. 616 page 622.The duty of the court to entertain an application is not discharged because the judgment had already been prepared but yet to be delivered, when an application which may be relevant to the substance of that judgment was filed. The application should be considered and determined before the judgment may or may not thereafter be delivered. See Mobil Producing (Nigeria) Unlimited v. Monokpo (2003) 18 NWLR pt. 852 page 282.
Savana Bank (Nig) Ltd. v. S.I.O. Corporation & OFS. (2001) 1 NWLR pt.
693 page 194.
Mokwe v. Williams (supra).
In the instant case from the Record of Appeal before the court, it has not been disclosed that the learned trial judge entertained the Notice of Preliminary Objection and the counter-affidavit filed by the appellant before the matter was adjourned for judgment to the 10th day of December, 2008.
The preliminary objection and the counter-affidavit were filed by the Appellants on 25th November 2008 and that the learned trial judge was aware of the said process in the court’s file but insisted that the processes were filed late. The trial court failed to invite the counsel to the Appellants to address it on the application.
The right of address by counsel is an important aspect of the right to fair hearing. The right to address the court is given before judgment. Where a court refused to accord counsel to a party a right to address it, any decision that may be reached by it after will be null and void.
In the instant case, the fact that the trial court considered the preliminary objection and the counter-affidavit in its judgment does not relieve it of its duty under the constitution and the law to hear counsel on all pending applications first before delivering its judgment. See Ihom v. Gaji (1997) 6 NWLR pt. 509 page 526 at 527-528.
It is trite that once there is a breach of fair hearing, the whole proceedings in the cause of which the breach occurred and the decision reached by the court becomes a nullity. See ANPP v. INEC (2004) 7 NWLR pt. 871 page 76. All Peoples Party v. Ogunsola (2002) 5 NWLR pt. 761 page 484.In the instant case, failure of the trial court to entertain the Notice of Preliminary Objection and counter-affidavit filed by the Appellants on 25th November 2008 of which the trial court was aware of their existence in the court file before the adjournment for judgment to 10th December 2008 violated the Appellants’ right to fair hearing under Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999.
This issue is resolved in favour of the Appellants. The decision of the trial court delivered on 10’h December 2008 is hereby voided.
ISSUE 2
On this issue, learned counsel for the Appellant contended that on the 5th day of December, 2008 the 1st Appellant on behalf of the other Appellants petitioned the Chief Judge of Anambra State alleging bias and undue interest in the matter by the trial Judge. Learned counsel alleged that notwithstanding the service of the Application for transfer of the suit, the learned trial Judge proceeded to deliver judgment in the case on 10th December 2008.
Learned counsel argued that this action of the court below offended the provisions of Order 37 Rule 1, 2 and 7 (I) of the Anambra State High Court (Civil Procedure) Rules, 2008 and judicial pronouncement on where there is objection on grounds of bias or likelihood of bias on the part of a Judge. The court was referred to the cases of Okoebo v. Police Council (2003) FWLR pt. 164 page 180 at 214.
Alaka v. Abalaka (2002) FWLR pt. 88 page 931 at 945 – 946.
Learned counsel submitted that the effect of the trial court proceeding to deliver judgment when there was a pending application for transfer of the suit on ground of bias renders the judgment delivered on 10th December 2008 null and void.
In his response on this issue, learned counsel for the Respondent, submitted that the 1st Appellant did not petition the Chief Judge of Anambra State on the 5th of December, 2008 for the transfer of this suit pending before the High Court at Ihiala. He referred to pages 158-170 of the Record of Appeal and maintained that on the 4/12/2008, the 1st Appellant purportedly filed at Awka High Court an application for transfer of this suit pending at Ihiala High Court.
Learned counsel referred to Order 37 of the High Court of Anambra State (Civil Procedure) Rules 2006 and submitted that the Appellants from the start violated completely the rules under which the application for the transfer was purportedly made which therefore render it null and void.
He argued that the matter sought to be transferred in this case was pending at Ihiala Judicial Division and the transfer was to be made to another judge in the Ihiala Judicial Division in accordance with Order 37
Rule 1 (1), (3) and (a) of the High Court Rules.
The rules provides that the application must be filed at the Registry of the Court where the suit is pending and that it is the duty of the Registrar to transmit the application to the Chief Judge or the appropriate Judge.
Learned counsel maintained that the Appellants in this case, purportedly on the 4th December, 2008 filed at the High Court of the Awka Judicial Division an application for transfer of two suits viz: OT/54/2008 and HIH/177/2008 instead of filing same at the High Court of Ihiala Judicial Division where the suit HIH/177/2008, the subject of this appeal was pending. He submitted that this action of the Appellants vitiated the authenticity and legality of the said application. He contended that the filing of the application where the case was not pending, robbed the Chief Judge of the opportunity and jurisdiction to attend legally to the application because Order 37 Rule 2(3) & (4) provide that even when the application was for transfer from one judicial division to another, it must be made at the registry of the court where the matter is pending.
Learned counsel argued that in this case, the Appellants had not complied with the provisions of the rules, and they cannot therefore question the validity of the judgment of the trial court based on the purported application for transfer.
He submitted that the purported application was not initiated through due process and the requisite jurisdiction and is therefore invalid. He cited in support of his submission the case of Tukur v. Taraba State (1997) 6 SCNJ page 81 at 108-109.
Learned counsel insisted that the essence of filing the application in the court where the suit is pending is for promptness of notice, but that in this case, the Appellants deliberately went to Awka to file it, to set a booby trap and to ambush the Respondent. He submitted that this practice was condemned in the case of Azaokwu v. Nwakamma (2005) 11 NWLR pt. 937 page 537 at 562.
It is submitted that Order 37 Rule 7(2) makes it clear that application for transfer is an administrative matter.
Learned counsel maintained that the application for transfer is not suited for appeal, being merely administrative in nature. He argued that mere administrative matter cannot be used to overturn a matter validly heard by a Judge in open court. He referred the court to the case of Dike v. Aduba (2000) 2 & 3 SCNJ page 41 at 47 – 48.
Learned counsel submitted that section 241 (1) of the 1999 constitution gave a right of appeal from the decisions of the High Court to the Court of Appeal. He argued that the administrative actions(s) or inaction(s) on matter(s) relating thereto of the Chief Judge of Anambra State or a Judge of any Judicial Division does not qualify as a ‘decision’ in which an appeal shall lie to the Court of Appeal.
Learned counsel maintained that the fact that the purported application was lying before the Chief Judge and the trial court went on with the matter was not appealable because the response of the Chief Judge would not have been appealable not being a decision. He referred the court to the case of Kalu v. Odili (1992) 5 NWLR pt 240 page 130 at 189.
Learned counsel contended that the Appellants have failed to show how they were denied fair hearing through non consideration of the purported application for transfer which was irregular and that they also failed to show bias or likelihood of bias.
Learned counsel submitted that the mere application for transfer of which the Appellants did not tell this court its outcome, would not nullify the well considered decision of the trial court.
Both parties had referred the court to the provisions of Order 37 of the High Court of Anambra State (Civil Procedure) Rules 2006, which deals with transfer of causes or matter. The provisions of the said Order relevant to this matter are rules 1(1), (2), (3), (4), 2(1) (2) (3) (4), 3(1), 7(1) & (2) and they are hereby adumbrated as follows:
(1) The transfer of any causes or matter from one Judge to another Judge in the same judicial division shall lie at the discretion of the Chief fudge or any other Judge designated by the Chief Judge as their judge in charge of administrative duties in the judicial division (misc).
(2) The transfer under sub-rule (1) may be at the instance of a party to the suit or suo moto at the discretion of the Chief Judge or such other Administrative Judge aforementioned.
(3) A party seeking o transfer under sue-rule (1) shall -file a written application in Form 46 at the Registry of the Court where the suit is pending.
(4) The Registrar shall transmit the application to the Chief Judge or the appropriate Judge and shall inform the applicant if the application be refused or both parties if the application be granted.
2(1) The transfer of any cause or matter from one judicial division to another judicial division shall lie at the discretion of the Chief Judge.
(2) Such transfer may be at the instance of party to the suit or suo moto at the discretion of the Chief Judge.
(3) A party seeking a transfer under the rule shall file a written application in Form 46 at the registry of the court where the suit is pending.
(4) The Registrar shall transmit the application to the Chief Judge and shall take similar action as in sub-rule (4) of rule 1 of the order when the decision of the Chief Judger is communicated to him.
3.(1) The transfer of a cause or matter may be expressed to be from one court to another court, or from a named Judge to another named Judge. Provided that where a transfer is to name Judge and such Judge for any reason fails to conclude the proceedings his successor can take over the case de novo without further order of transfer.
4(1) …………………………………………
(2) ……………………………………………
5 ……………………………………………..
6(1) …………………………………………..
(2) …………………………………………….
7(1) An application for transfer under rules 1, 2, and 4 operates from the date thereof as o stay of proceedings in the High Court or the magistrate’s court where the suit was pending and renders any proceedings after such date in such court null and void.
(2) For the avoidance of doubt, the transfer of a case or matter under the preceding rules, is an administrative act whether or not the authority to effect the transfer be derived from statutory provisions and is not subject of a review by any court or appeal,
In the instant case, the Appellants who were the applicant at the trial court sought for this matter filed at the Ihiala Judicial Division to be transferred to another Judge in the Ihiala Judicial Division.
The provisions of Order 37 Rules 1(3) provide that a party seeking a transfer must file a written application at the Registry of the court where the suit is pending. However, in the present case, the Appellants instead of filing their application at the Registry of the Ihiala High Court, where the suit was pending, took their application to the Registry of the Awka Judicial Division where the matter was not pending.
Order 37 Rule 2(1) & (3) of the High Court of Anambra State (Civil Procedure) Rules 2006 further provides that even where the application is for transfer from one Judicial Division to another Judicial Division, it must be made at the registry of the court where the matter is pending.
In the instant case, the Appellants are in violation of the provision of order 37 rules 1 (3) of the High Court of Anambra State (Civil Procedure) Rules 2006. They cannot therefore question the validity of the judgment of the lower court which has not taken into account the purported application for transfer.
Order 37 Rule 7(2) of the High Court of Anambra State High Court (Civil Procedure) Rules 2006 also stipulates that an application for transfer is an administrative matter and that it is not appealable.
The Supreme Court said in a similar matter on an application for transfer in the case of Duke v. Aduba (2000) 3 NWLR pt. 1 647 page 1 at 10 thus:-
‘It was a routine administrative matter unsuited for the importation of the concept of judicious and judicial exercise of discretion that it was not o judicial or quash judicial function properly so-called. Consequently, a decision arrived thereat is not one that is appealable to the Court of Appeal’.
The opinion that an administrative matter such as that stipulated under order 37 of the High Court of Anambra State (Civil Procedure) Rules 2006 is not suitable for the exercise of jurisdiction by the Court of Appeal.
The exercise of discretion by the Chief Judge under Order 37 of the High Court of Anambra State (Civil Procedure) Rules 2006 does not qualify as a decision within the provisions of Section 318(1) of the 1999 constitution. Such exercise of discretion by the court are not one of those decisions that are appealable as of right to the Court of Appeal under section 241 (1) or by leave under section 242 (1) of the Constitution of the Federal republic of Nigeria 1999
Interpreting the provisions of Order 19 Rule 5(1) of the Anambra State High Court (Civil Procedure) Rules 1988 which is in pari-materia to the provisions of Order 37 Rule 1(3) & (4) of the High Court of Anambra State (Civil Procedure) Rules 2006. The Supreme Court held per Karibi- Whyte JSC in Dike v. Aduba (supra).
‘It seems to me that in exercising the power under Order 19 Rule 5(1), it is sufficient if the administrative Judge or Chief Judge as the case may be is satisfied that there are good reasons for the transfer. It follows therefore that having made this decision either way, it is not subject to appeal.
This is because a decision under Order 19 Rules 5 (1) (2) does not fall within the definition of ‘decision’ under section 277(1) of the 1979 constitution, now section 318(1) of the constitution 1999 – See Kalu v. Odili (1992) 5 NWLR pt. 240 page 130 at 189.In the instant case, the Appellants have not placed anything before the court to indicate that the application for the transfer was transmitted to the Chief Judge under Order 37 Rule 1(4) and that the decision of the Chief Judge had equally been brought to the notice of the trial judge at the Ihiala High court. The Appellants had not disclosed that the Chief Judge approved their application.
The trial Judge acted properly in proceeding to judgment on the matter before him when neither the application for transfer of the case before him nor any decision of the Chief Judge granting the request for the transfer or refusal was communicated to him. This issue is resolved in favour of the Respondent.
On the whole, this appeal succeeds in part, however since there is a violation of the right of fair hearing of the appellants in the conduct of the matter by the trial court, its decision delivered on 10th December 2008 is a nullity, consequently the order of certiorari quashing the suspension of the Respondent by the Appellants is hereby set aside. The Chief Judge of Anambra State is hereby ordered to reassign this case to any judge of the Anambra State High Court other than C.E.K. Anigbogu J. to be heard de novo.
MOHAMMED L. TSAMIYA, J.C.A.: I have read before now the lead judgment of my learned brother Aboki, JCA. Just delivered with which I entirely agree.
I wish to add that a court has a duty to hear and determine all applications pending before it by giving a ruling in one way or the other, whether favourable to the party that filed it or not. See N.A.A. vs. Orjiakor (1998) 6 NWLR (Pt. 553) 265 at 279 para. B and 282 pars. D-E.
From the record of appeal it shows that the learned trial Judge did not entertained the Notice of preliminary objection as well as the counter-affidavit filed by the appellant before the matter was adjourned for judgment to the 10th of December, 2008. The trial court failed to invite the appellant to address the trial court on their counter-affidavit, and yet the trial court proceeded and gave its decision ignoring the said counter-affidavit.
Refusal of the trial court to hear the appellant on the preliminary objection and the counter-affidavit amounts to the infringement of the fair hearing of the appellant which is his fundamental right guaranteed by the Constitution and also enshrined in the principle of natural justice ‘audi alteram portem’. This denial, itself, nullifies the trial of the court. This is so because as the Supreme Court emphatically asserted:
“The denial (of justice) inflicts pain, grief, suffering and untold hardship on those who rely on impartial administration of justice”. See Ceekay Traders Vs. General Motors Co. Ltd (1992) 2 NWLR (Pt.22) 132 at 162 paras C-D and D-H respectively.
For the reasons I have given above and the fuller reasons given in the lead judgment which I also adopt, I allow the appeal.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have had a preview of the lead judgment just delivered by my learned brother ABOKI, JCA. I agree with the reasoning and conclusions therein advanced, that the appeal has merit and should be allowed in part. I too, hereby allow the appeal in part and set aside the judgment of the lower court. I also endorse the consequential order contained in the lead judgment.
Appearances
O. J. NnadiFor Appellant
AND
E. E. EgburuonuFor Respondent
