SOLACO NIGERIA LIMITED & ANOR v. NELSON FAGOROYO & ANOR
(2019)LCN/13212(CA)
In The Court of Appeal of Nigeria
On Monday, the 6th day of May, 2019
CA/AK/156/2014
RATIO
TRIAL : THE DUTY OF THE TRIAL COURTS IN A TRIAL
It is rudimentary law that a trial entails a judicial examination and determination of all the issues submitted by the parties in any particular action. In the case of:Bornu Holding Co. Ltd. V. Bogoco (1971) All NLR p.325, the Apex Court held as follows:
A trial is the public demonstration and testing before a Court of the cases of the contending parties. The demonstration is by assertion and evidence, and the testing is by cross-examination and argument. The function of a Court is to decide between the parties on the basis of what has been so demonstrated and tested.
See also the case of: Kajubo v. State (1988) LPELR-1646(SC) and Blacks Law Dictionary [Centennial Edition (1891-1991)] Sixth Edition, at page 1504.PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
FAIR TRIAL: TWO TYPES OF UNFAIRNESS IN TRIALS
In the case of: Kenon v. Tekam (2001) 14 NWLR (Pt. 732) p.12, the Apex Court listed the two categories of unfairness in a trial of an action before a Court or Tribunal. The first is procedural unfairness that arises where the Court or Tribunal adopts a procedure which does not ensure that one or both of the parties is/are not put at a disadvantage. The commonest forms of this are where a party had been deprived of an opportunity of a hearing and where there is no procedural equality between the parties. The second is substantive unfairness that arises where the Judge approaches his adjudicative function with a mind closed or a mind influenced by considerations other than the facts on which the parties are in agreement or is influenced by factors extraneous to his proper role as an umpire. See also the case of: Ibom Power Co. Ltd. & Anor. v. Harding & Ors. (2015) LPELR-40907(SC).PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
TRIAL: THE ESSENCE OF TRIAL
The very essence of a trial is to allow both sides to a dispute to present whatever facts they have before the Court as they see fit, unhindered, so as to enable the Court to arrive at a fair and just decision consistent to relevant laws. To put it in other words, the purpose of trial in a case is essentially to establish the justice of the case based primarily on the weight and substantiality of same. See the cases of: (1) F. G. N. & Ors. V. Zebra Energy Ltd. (2002) 18 NWLR (Pt. 798) p.162 and (2) C & C Construction Co. Ltd. & Anor. V. Okhai (2003) 18 NWLR (Pt.851) p.79.PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
FAIR TRIAL: WHAT IT ENTAILS
Indeed, the marrow of fair hearing under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 is a hearing at which all the parties before the Court are given equal opportunity to put through the fullness of their respective cases and have these considered and resolved fairly as the law demands. For a fair hearing must involve a fair trial and the fair trial of a case consists of the whole hearing of the case. The principle of fair hearing does not contemplate a standard of justice in which any of the parties enjoys favours and the other party is made to suffer any prejudice. Rather, it imposes an equipoised standard of justice in which the Court must be fair to all sides of the conflicts. The hearing must be fair and in accordance with the twin pillars of justice. The first pillar is namely audi alteram partem which means please hear the other side, that is, the Judge should allow both parties to be heard and ensure he listens to the points of view or cases of each side. The second pillar is, nemo judex in cause sua meaning, ?no Judge should preside over a matter in which he has a personal interest or involvement?. See the cases of: (1) Elike v. Nwakwoala (1984) 1 All NLR p.505; (2) Ndukauba v. Kolomo & Anor. (2005) 4 NWLR (Pt. 915) p.411; (3) Pam & Anor. v. Mohammed & Anor. (2008) 16 NWLR (Pt.1112) p.1; (4) Sylva v. INEC & Ors. (2015) LPELR-24447 (SC) and (5) Ugboji v. State (2017) LPELR-43427 (SC).PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
FAIR TRIAL: THE RULE OF FAIR HEARING IS A RULE OF SUBSTANTIAL LAW
For the rule of fair hearing is not a technical doctrine but a rule of substantial law. See the cases of: (1) Kotoye v. C.B.N. (1989) 1 NWLR (Pt.98) p.419; (2) Poroye v. Makarfi (2017) LPELR-42738 (SC); (3) Oyeyemi v. Owoeye (2017) LPLER-41903(SC) and (4) Wagbatsoma v. F.R.N. (2018) LPELR-43722(SC).PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
FAIR TRIAL: DIFFERENCE BETWEEN PROCEDURAL AND SUBSTANTIVE UNFAIRNESS
There were both procedural and substantive unfairness in the purported trials. Procedural unfairness in the sense that the Appellants were put at a disadvantage, that is, judgment was not delivered in the action of the 1st Appellant against the Respondents after its trial. In the case of the 2nd Appellant, there was no trial at all in its action against the Respondents before the purported decision of the trial Court therein was rendered. There was also substantive unfairness because the said purported decision of the trial Court in the actions of the Appellants against the Respondents were influenced by extraneous considerations other than the bare facts presented by the parties before the learned trial Chief Judge.PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
WHEN A JUDGMENT OR PROCEEDINGS IS A NULLITY, IT CAN BE SET ASIDE
It is a trite fundamental principle of law that, once the proceedings or judgment or order of a lower Court is a nullity, the party who is affected by such proceedings or judgment or order is entitled ex debito justiciae to have same set aside by that Court or an appellate Court, as the case may be. See the cases of: (1) Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 S. C. p.6; (2) Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (Pt. 109) p. 250; (3) Vulcan Gases Ltd. v. Gesellschaft Fur Ind. Gasverwertung A. G. (G.I.V.) (2001) 9 NWLR (Pt. 719) p.610; (4) Dingyadi & Anor. v. INEC & Ors. (2010) 7-12 S. C. p. 105; (5) Adeyemi-Bero v. Lagos State Development and Property Corporation & Anor. (2013) 8 NWLR (Pt. 1356) p.238 and (6) Nyesom v. Peterside & Ors. (2016) LPELR-40036 (SC).PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
THE EFFECT OF A PARTY CONSENTING TO A WRONG PROCEDURE BY A JUDGE
My response without any ado is that, it is a general principle of law that, a party who consents to a wrong procedure by a Judge cannot subsequently complain or challenge that procedure. See the cases of: (1) Noibi v. Fikolati & Anor. (1987) 1 NWLR (Pt. 52) p. 619; (2) SPDC (Nig.) Ltd. v. Edamkue & Ors. (2009) 14 NWLR (Pt. 1160) p. 1 and (3) Alfa v. Attai & Ors. (2017) LPELR-42579 (SC).PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
A PARTY WHO CONSENTS TO A WRONG PROCEDURE BY A JUDGE CANNOT CHALLENGE THE PROCEDURE EXCEPT UNDER THE EXCEPTIONS
However, there are exceptions to this general rule. The exceptions include, where the wrong procedure consented to amounts to an illegality or a nullity or can be shown to have worked injustice or miscarriage of justice to the party complaining. For in law, parties cannot consent to null or illegal proceedings. See the cases of: (1) Ukpong v. Com. for Finance & Economic Development (2007) All FWLR (Pt. 350) p. 1246; (2) Shaaban v. Sambo (2010) 19 NWLR (Pt. 1226) p. 353 and (3) NITT & Ors. v. Shittu (2015) LPELR-25926 (CA). PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
1. SOLACO NIGERIA LTD
2. SAOLA ENTERPRISES LIMITED Appellant(s)
AND
1. NELSON FAGOROYO
2. MATHEW AKINYEMI
(For themselves and as representatives of Orioge family, Oba Ile) Respondent(s)
OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ondo State sitting in Akure per Kumuyi, C J, (as he then was, now retired and hereinafter referred to as ?the trial Court?) delivered on 31st of March, 2014, in Suit No. AK/25/2013.
At the trial Court, the 2nd Appellant, Saola Enterprises Limited, as Claimant vide its Writ of Summons and Statement of Claim issued on 20th of February, 2013 claimed against the Respondents as defendants the following reliefs:
(a) Declaration that the Claimant is entitled to the Statutory Right of Occupancy in respect of the piece or parcel of land situate and being at Off Owo Road, Oba-Ile in the Akure North Local Government Area of Ondo State measuring approximately 9235.846 square metres and edged red on the Survey Plan No. AB/715B/OD dated the 20th October, 1981 prepared by ADIO .B. APATIRA, a licensed surveyor and which land is covered by the Certificate of Occupancy registered as No. 17 at page 17 in Volume 346 of the Lands Registry in the Office at Akure.
(b) The sum of N5m (Five Million Naira) being
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general damages for trespass.
(c) Perpetual injunction restraining the Defendants, their agents, privies, servants or anyone claiming through or in trust for them from committing any further acts of trespass on the land the subject of dispute.
However, prior to the above stated action, the Respondents herein had been sued also as defendants by the 1st Appellant Solaco Nigeria Limited in Suit No. AK/15/2013. The Writ of Summons and Statement of claim in the latter action was issued on 7th of February, 2013, wherein the 1st Appellant claimed against the Respondents as follows:
(a) Declaration that the Claimant is entitled to the Statutory Right of Occupancy in respect of the piece or parcel of land situate, lying and being at Off Owo Road Oba-Ile in the Akure North Local Government Area of Ondo State, measuring approximately 1.702 Hectares and edged red on the Survey Plan No. AB/715A/OD dated 20th October, 1981 prepared by ADIO .B. APATIRA a licensed surveyor and which land is covered by the Certificate of Occupancy registered as No. 52 at page 52 in Volume 340 of the Lands Registry in the office at Akure.
(b) The sum of N5m (Five Million
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Naira) being general damages for trespass.
(c) Perpetual injunction restraining the Defendants, their agents, privies, servants or anyone claiming through or in trust for them from committing any further acts of trespass on the land the subject of dispute.
The two suits of the Appellants are for declaration of title to two parcels of land, general damages for trespass and injunction against the Respondents. It is pertinent at this juncture to state straightaway that, the two actions against the Respondents relate to different parcels of land, although both parcels of land are situate in the same area, that is, Off Owo Road, Oba-Ile in Akure North Local Government Area of Ondo State. This can clearly be gleaned from the endorsements on the two Writs and Statements of Claims contained in pages 2 to 5 of the record of appeal and pages 8 to 12 of the supplementary record of appeal respectively.
In tune with the rules of practice of the trial Court, pleadings were separately settled by the parties in the two suits. As prefatory remarks, it is apposite to state that, on 28th of January, 2014, trial commenced in Suit No. AK/15/2013. In the bid to
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establish its claims against the Respondents, the 1st Appellant fielded two witnesses and tendered in evidence two sets of documents marked Exhibits A-A6 and B-B1. While in defending the claims against them, the Respondents called five witnesses and tendered an array of documentary evidence. Upon the closure of the cases of the parties in Suit No. AK/15/2013 on 30th of January, 2014, Suit No. AK/25/2013 the subject of this appeal was called for the first time. On that date, both suits were purportedly consolidated by the trial Court and adjourned to the 4th of March, 2014. Albeit Suit No. AK/15/2013 was specifically adjourned for the adoption of the written addresses of parties? counsel in substantiation of their opposing stances in the matter.
However, on the said return date, that is, 4th of March, 2014, only Suit No. AK/15/2013 was called and parties? counsel duly adopted their respe
