STEPHEN OKEDION & ORS v. FEDERAL AIRPORT AUTHORITY OF NIGERIA & ANOR
(2007)LCN/2536(CA)
In The Court of Appeal of Nigeria
On Friday, the 23rd day of November, 2007
CA/L/450/02
RATIO
JUDGMENT AND ORDER – ORDER OF NON-SUIT : WHAT DOES AN ORDER OF NON-SUIT MEANS AND WHEN SHOULD IT BE GRANTED
“An Order of non-suit is like other orders a discretionary one, which is to be exercised by the trial Court judicially and judiciously. Its purpose is to give a plaintiff who fails to obtain a judgment in his favour another opportunity or chance to relitigate the same cause or case instead or barring or preventing him from doing so if the Court dismisses his action. Such an incidence may arise where for example the Court finds the interest or right of a third party who is not a party to the suit is involved in the case or where the plaintiff on a technical ground fails to establish his claim before the trial Court and the defendant is not entitled to a judgment in his favour. In any case, the Courts are weary in making the order where the plaintiff fails to produce sufficient on necessary evidence to prove his case or claim as per the holding of the learned trial judge in the present case except where such a plaintiff (or litigant) is unassisted or unrepresented by Counsel. In other words, where the unsuccessful plaintiff is represented by a Counsel who conducts his case, he is bound by whatever evidence the Counsel presents to the trial Court and the proper order to be made at the end and where the case has not been proved or established should be that of dismissal rather than a non-suit -See ANYAKWO v. ACB LTD (supra) CRAIG Vs, CRAIG (supra); OLAYIWOLA Vs, OSO (1969) 1 ALL NLR 281 at 284-285; OSAYI v. IZOZO (1969) 1 ALL NLR 15 AT 157; GREEN v. GREEN (1987) 3 NWLR (Pt. 61) 480; OGBECHIE Vs, ONOCHIE (1988) 1 NWLR (pt.70) 370; and EGWU Vs. MADUNKWU (supra at p, 585 of the report), In any case the two most be important aspects of the principles on the Court’s grant of an order of non-suit which should not be condoned or overlooked by the appellate Court are as they relate to the fundamental issues of jurisdiction and fair hearing namely- (a) Whether the Court making the Order (of non-suit) has the power to do so under its rules of practice; and (b) Whether the Court making the Order in its final judgment had heard the parties or afforded them the opportunity of being heard before making its order (of non-suit). -See O.A.A. COOPERATIVE SOCIETY Vs. NACB (Supra); SANUSI Vs. MAKINDE (Supra); PHILIPS Vs. OGUNDIPE (1967) 1 ALL NLR 258; NTEPHE Vs. NTEPHE (1993) 3 NWCR (pt. 282) 482; IKORO Vs. SAFRAP (NIG) LTD. (1977) 2 SC 123; and AKPAPUNA Vs. OBI NZEKA II (1983) 2 SC NLR 1” PER DALHATU ADAMU, J.C.A.
JUDGMENT AND ORDER – ORDER OF NON-SUIT : WHEN CAN AN APPELLATE COURT INTERFERE TO SET ASIDE A WRONG ODER OF NON-SUIT BY THE TRAIL COURT
“..where a trial Court wrongly makes an order of non-suit, as in the instant case, an appellate Court will or should interfere to set aside the wrong order and to make an appropriate order (whether to grant the claim or to dismiss it) considering the evidence available and the circumstances of the matter on appeal -See USIKARO Vs. ITSEKIRI LAND TRUSTEES (1991) 2 NWLR(pt.171) 150; ASIEMO Vs. AMOS (1975) 2 SC 57; KORO Vs. SAFIAP (NIG) LTD (1977) 2 SC 123; SANUSI Vs. MAKINDE (Supra at P.231 of the report), and ANYAKWO Vs. ACB LTD (Supra) at (P. 123)” PER DALHATU ADAMU, J.C.A.
ACTION – DECLARATORY RELIEF : WHEN SHOULD A DECLARATORY RELIEF BE GRANTED BY THE TRAIL COURT
“It is trite that the relief sought by the appellants at the trial Court being declaratory is a discretionary one which should only be granted in circumstances where the court is fully convinced and is of the opinion that the party seeking it is, when all the facts are taken into account, fully entitled to the exercise of the Courts discretion in his favour. Moreover, a Court does not grant a declaratory relief on an admission or default of either pleadings or evidence of the opposing party. Despite such default or admission, the Court must be satisfied that the claimant on his evidence is entitled to the relief claimed. He will be so entitled upon proof by cogent, credible, sufficient and reliable evidence to show his entitlement to the declaration sought. It is also his sole duty to do so (i.e. to establish his case) and not that of the opposing party to disprove his said claim. Consequently where the claimant fails to adduce such cogent, credible or reliable evidence in proof of his claims, such claim(s) must be dismissed by the Court -See MOTUNWASE VS. SORUNGBE (1988) 5 NWLR (pt.92) 90; KODILINYE Vs. ODU (1935) 2 WACA; FABUMI Vs. ACBE (1985) 1 NWLR (pt.2) 299; BELLO Vs. EWEKA (1981) ISC 101; ACBANA Vs. OWA (2004) 13 NWLR (pt.889) 1; and ANYARU Vs. MANDILAS LTD (2007) ALL FWLR (Pt.382) 1047 at 1860” PER DALHATU ADAMU, J.C.A.
EVIDENCE – BURDEN OF PROOF: WHEN WILL THE BURDEN OF PROOF SHIFT TO THE DEFENDANT AND THE EFFECT OF FAILURE OF THE PLAINTIFF TO DISCHARGE HIS BURDEN
“It is only when the plaintiff discharges his burden of proof that the said burden will shift to the defendant as the party who would fail if no evidence is adduced-onus probandi – See AJIDE Vs. KELANI (1985) 11 SC 124; AND YUSUF Vs. ADEGOKE (2007) 7 ALL FWLR (Pt.385) 384 AT 405. Where a plaintiff fails to discharge his burden by calling credible and cogent evidence as in the present case his case has collapsed and should be dismissed by the trial Court” PER DALHATU ADAMU, J.C.A.
JUSTICES
DALHATU ADAMU Justice of The Court of Appeal of Nigeria
M. B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
Between
1. STEPHEN OKEDION
2. EJEDAME AIGHE
3. L.C. ODOEMENA
(Suing for themselves and on behalf of tile staff of Federal Airport Authority of Nigeria (FAAN) whose Salaries are being withheld) Appellant(s)
AND
1. FEDERAL AIRPORT AUTHORITY OF NIGERIA
2. THE MANAGING DIRECTOR FEDERAL AIRPORT AUTHORITY OF NIGERIA Respondent(s)
DALHATU ADAMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court sitting at Lagos (Per A. A. Gumel J. as he than was) The Appellants (as Plaintiffs) and in a representative capacity sued the Respondents at the said Court where they claimed (as per their amended statement of claim – at page 63 of the record of appeal) as follows: –
“15 WHEREOF the plaintiffs claim from the Defendants jointly and severally the followings:
(a) A DECLARATION that the Plaintiffs are entitled to their salaries and allowances having worked for the Defendants from January 1997 to October, 1999.
(b) PARTICULARS OF SPECIAL DAMAGES
(i) Payment of Ten Million, Two Hundred and thirty Four Thousand Eight Hundred and Nine Naira Fifty- Two Kobo (N10, 234,809.52K) being salaries and Allowances of 42 out of the 48 Plaintiffs herein as shown, in the above particulars.
(ii) Transportation to and from the Defendants office since October 1999 till date N100,000.00
(iii) Solicitors fees N350, 000.00
Total Special Damages N10, 648,809.52k
GENERAL DAMAGES OF N500, 00000 (to each of the Plaintiffs).”
On the above claims pleadings were duly Ordered and exchanged.
The Plaintiffs initially filed a statement of claim, which they later amended, with the leave of Court granted on 25/4/2001. The Respondents on their own part filed their statement of defence dated 31/5/1999 (See pages 20-24 of the record of Appeal). At the end of pleadings and after joining issues, the trial Court commenced hearing of the case with the plaintiffs/Appellants (hereafter called” the Appellants”) opening their case by calling two witness. They also tendered some exhibits and closed their case on the same date. The Defendants /Respondents (also hereinafter called” the Respondents”) eventually informed the Court on 8/1/2002 that they did not wish to call any witness. Thereafter the Court ordered the parties to file their written addresses which were duly filed with the Appellants filing their reply on points of law on 18/4/2002. The addresses were adopted on 28/5/2002 and the trial Court adjourned for judgment which was eventually delivered on 2/10/2002 (after several adjournments and the lapse of about 4 months from the hearing date of 28/5/2002). In the said judgment, the trial Court found that the appellants did not adduce sufficient and credible evidence to prove their claims or to warrant the grant of the reliefs they sought. At the same time the Court found that there was no any credible evidence to warrant the dismissal of the action. Consequently, the Court made a final Order of non-suit on the Appellants action.
Being dissatisfied with the judgment of the trial Court, the appellants filed their appeal against it in this Court as per their Notice of Appeal dated 22/10/2002 containing three grounds of appeal (with their particulars) – See pages 122-125 of the record of appeal. From their 3 (three) grounds, the appellants formulated the following 3 issues for determination in their brief of arguments (dated and filed on 24/1/03): –
” 3.02 Whether the Court (Federal High Court) can make an Order of non-suit where there is no provision for it in its Rules of Court.
3.03 Whether the failure of the trial judge to call on Counsel to address him before the Order of non-suit was entered does not amount to a denial of the Appellants right to fair hearing.
3.04 Whether the Appellants did not by the preponderance of unchallenged uncontradicted and uncontroverted evidence led by them proved (sic) their case against the Respondents.”
Even though there is no express attempt in the Appellants brief to link or relate the above three issues to their three grounds of appeal, I have, on my own perusal, found the said issues to be so linked or related respectively to the Appellants three grounds of appeal. The Respondents brief was dated and filed out of time on 13/3/06, but was deemed by this Court to be properly filed and served on 28/9/06. In the said brief, the respondents adopt all the three issues formulated by the appellants (though in different wordings). It can therefore be safely stated that the parties are in agreement on the three issues formulated by the appellants as reproduced above. I will therefore adopt the Appellants 3 issues in this judgment. Since issues 1 and 2 are both predicated on the question of the propriety or otherwise of the trial Court’s Order of non-suit, I intend to deal with the two issues together while treating the 3rd issue separately.
In their submissions under their 1st issue the Appellants emphasized the settled principle that the power of the Court to make an Order of non-suit is derived from or conferred by the specific provision of its rules. Where no such power is conferred on the Court by its rules of practice, it follows that such Court cannot validly make the Order (of non-suit) on the matter before it. It is pointed out in the brief that in the instant case there is no provision for non-suit in the relevant rules of the trial Court namely the Federal High Court (Civil Procedure) Rules 2000. Thus the trial Court in this case lacked the jurisdiction to Order a non-suit as it wrongly did. The Appellants rely for their above submission on the following authorities from the decision of the Supreme Court and this Court: –
1. KHALID AND DIBBO TRANSPORT LIMITED v. ODUMADE (2000) FWLR (pt 17) 163.
2. O. A.A CO-OPERATIVE SOCIETY v. NACB LIMITED (1999) 2 NWLR (pt 590) 234 at 245.
3. BELUONWU v. O.K. ISOKRARI AND SONS (1994) 7NWLR (pt 358) 587 at 609.
4. ANYAKWO v. ACB LIMITED (1976) NSCC page 113 at 114.
This Court is finally urged by the Appellants under their 1st issue to resolve it in their favour and to hold that the trial Court lacked the jurisdiction to have non-suited their case when there is no provision in its rule allowing or permitting it to do so.
In their 2nd issue the Appellants contended that the failure of the learned trial judge to call on the learned Counsel for the parties to address him on the propriety or otherwise of making the Order of non-suit in the case before making the said Order suo motu and in his final judgment, amounted to a denial of the Appellants right to fair hearing. It is submitted by the Appellants that this failure or denial on the part of the learned trial judge also offended the provision of section 36 of the 1999 constitution of the Federal Republic of Nigeria. The Appellants in support of their submission relied on several case – law authorities on the point, which I found to be apposite and which include. SANUSI Vs, MAKINDE (1994) 5NWLR (pt. 343) 214 at 231; EGWU Vs. MADUNKWU (1997) 4 NWLR (pt.501) 574 at 585; ISHOLA Vs. AJIBOYE (1994) 6 NWLR (pt.352) 506 at 561; NTEPHE Vs. NTEPHE (1993) 3 NWLR (pt.282) 428 at 490; CRAIG Vs. CRAIG AND CRAIG (1996) ANWLR 165 at 177; and ANYANKWO Vs. ACB LIMITED (supra).
On the trial Court’s breach of the Appellants right to fair hearing by its failure to call on them or the parties to address it before making the Order of non-suit against them, the Appellants cited and relied upon section 36 (1) of the 1999 constitution (supra) and NIGERIA ARAB BANK LIMITED Vs. COMEX (1999) 6 NWLR (pt. 608 648 at 663 – 664; and AGBAHOMORO Vs. EDUYEGBE (1999) 3 NWLR (pt.594) 170 AT 184. This Court is finally urged by the Appellants under their 2nd issue to hold that the learned trial judge acted in breach of their right to fair hearing when he failed to call them or to afford them an opportunity to address him before making his Order non-suiting their case.
In the Respondents brief under their 1st issue, the appellants submissions under the corresponding issue in the laters’ brief (i.e. issue 1) are expressly conceded to or admitted in the following words: –
“2.04 With respect to this issue, the Respondents concede that the trial lower Court being a creation of statute wields, only the jurisdiction conferred on it by statute including its rules of Court. The Respondents submit therefore that where there is no power for non-suit in the Federal High Court (Civil procedure) Rules 2000, the trial Lower Court exceeded its jurisdiction and erred in Law when it made an Order of non-suit in this matter” (underlining is for emphasis), In addition to the authorities cited by the Appellants on the point the Respondents (in their brief) cited and relied upon the cases of O.A.A. CO-OPERATIVE SOCIETY Vs. NACB (supra, also cited in the Appellants brief); and OBIOMA Vs. OLOWU (1978) See 3 SC J in support of their conceding submission. It is finally submitted in the brief that since the error committed by the Lower Court affected both parties in the present appeal this Court is urged to set aside the Order of non-suit by the said trial Court but to dismiss the Appellants suit instead of entering a judgment in favour of the Appellants who have failed to establish a prima facie case before the said Lower Court notwithstanding the Respondents failure to lead any evidence or call any witness is support of their pleadings at the said Court.
In their short submission under their 2nd issue the Respondents described the issue (of fair hearing) as merely academic and does not arise or is irrelevant once it is resolved or determined that the Lower Court has no jurisdiction to make an Order of non-suit in the case. The Respondent also reiterated their view that the trial Court’s failure or error in non – suiting the case or in not hearing the parties before the non-suit Order affected both parties equally. In my humble view, the sum total effect and implication of the Respondents above submission, is also another concession to or admission of the Appellants earlier reproduced submission on the issue even though they (i.e. the Respondents) finally urged this Court to discountenance the issue.
From the above submission in the two briefs under the twin issues (considered together), my task has been made easy by the mutual concession and the agreement of the parties in their brief on the issues. I must commend the learned Counsel for their mutual concession and for their unassailable submissions and the authorities cited which I found very useful and helpful in the preparation of this judgment. I therefore find no difficulty in upholding the submissions in the two briefs. It is pertinent in this regard to point out that there is no dispute on the absence of any provision in the Federal High Court (Civil Procedure) Rules 2002 permitting or authorizing the trial Court to make an order of non-suit. The effect of such an omission in the trial Court rules of practice (supra) is that it has no power, competence or jurisdiction to make such an order (of non-suit) as it erroneously made in its judgment in the present case. It is also pertinent to observe that neither of the parties to the suit (in their final written addresses) sought for or asked the trial Court for such an order to be made in the case. (See their final addresses respectively at pages 76 -84 and 86 -91 of the records of appeal). Thus the learned trial judge made the order (of non-suit) suo motu in his judgment. The issue or question of whether or not to non-suit the appellants suit was not sought for nor raised by either of the parties before the trial Court but was unilaterally raised by the learned trial judge who proceeded to resolve it in his judgment.
This procedure adopted by the learned trial judge is against the settled norms and principles of justice in our adversary system which require him in the circumstances to call or recall the parties and their learned Counsel and to afford them with an opportunity to address him on the issue he raised suo motu of his own motion. The failure of the learned trial judge to hear the parties before making his order on an issue he raised by himself alone and in his judgment has been held in a number of decision of our superior Courts to amount to not only a mere procedural error but a breach of the parties right to fair hearing both under the rules of natural justice and as enshrined in our constitution (section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999). The right to fair hearing is a fundamental right and is treated with such importance by our Courts and where, as in the instant case, a trial Court arrives at any decision without hearing the parties or giving them an opportunity of being heard an appellate will not hesitate to declare such a decision as a nullity -see OSHODJ Vs. EYIFUNMI (2000) 13 NWLR (pt.684) 298; OYE Vs. BABALOLA (19991) 4 NWLR (pt. 185) 267; KUTI Vs. BALOGUN (1978) 1 SC 53; NWOKORO Vs. ORUMA (1990) 3 NWLR (pt.136) 22 at 23; GENERAL OIL LTD Vs. OGUNADE (1999)4 NWLR (pt. 501) 613 at 622; DEDUWA Vs. OKORO DUDU (1976) 9 – 10 SC 392; AMADI Vs. APHIN (1972) 4 SC 228; GOVERNOR OF IMO STATE Vs. NWANWA (1997) 2 NWLR (Pt 490) 675; and ATTORNEY GENERAL RIVER STATE Vs. UDE (2007) ALL FWLR (pt. 347) 598 at 613.
An Order of non-suit is like other orders a discretionary one, which is to be exercised by the trial Court judicially and judiciously. Its purpose is to give a plaintiff who fails to obtain a judgment in his favour another opportunity or chance to relitigate the same cause or case instead or barring or preventing him from doing so if the Court dismisses his action. Such an incidence may arise where for example the Court finds the interest or right of a third party who is not a party to the suit is involved in the case or where the plaintiff on a technical ground fails to establish his claim before the trial Court and the defendant is not entitled to a judgment in his favour. In any case, the Courts are weary in making the order where the plaintiff fails to produce sufficient on necessary evidence to prove his case or claim as per the holding of the learned trial judge in the present case except where such a plaintiff (or litigant) is unassisted or unrepresented by Counsel. In other words, where the unsuccessful plaintiff is represented by a Counsel who conducts his case, he is bound by whatever evidence the Counsel presents to the trial Court and the proper order to be made at the end and where the case has not been proved or established should be that of dismissal rather than a non-suit -See ANYAKWO v. ACB LTD (supra) CRAIG Vs, CRAIG (supra); OLAYIWOLA Vs, OSO (1969) 1 ALL NLR 281 at 284-285; OSAYI v. IZOZO (1969) 1 ALL NLR 15 AT 157; GREEN v. GREEN (1987) 3 NWLR (Pt. 61) 480; OGBECHIE Vs, ONOCHIE (1988) 1 NWLR (pt.70) 370; and EGWU Vs. MADUNKWU (supra at p, 585 of the report), In any case the two most be important aspects of the principles on the Court’s grant of an order of non-suit which should not be condoned or overlooked by the appellate Court are as they relate to the fundamental issues of jurisdiction and fair hearing namely-
(a) Whether the Court making the Order (of non-suit) has the power to do so under its rules of practice; and
(b) Whether the Court making the Order in its final judgment had heard the parties or afforded them the opportunity of being heard before making its order (of non-suit). -See O.A.A. COOPERATIVE SOCIETY Vs. NACB (Supra); SANUSI Vs. MAKINDE (Supra); PHILIPS Vs. OGUNDIPE (1967) 1 ALL NLR 258; NTEPHE Vs. NTEPHE (1993) 3 NWCR (pt. 282) 482; IKORO Vs. SAFRAP (NIG) LTD. (1977) 2 SC 123; and AKPAPUNA Vs. OBI NZEKA II (1983) 2 SC NLR 1.
I will not conclude my resolution of the twin issues under review without making an emphasis on the fundamental issue of jurisdiction raised in the two briefs in the present case. It is trite that the issue of jurisdiction is regarded or treated by the Courts (including the appellate Court) as a very fundamental one that goes to the root of the Courts power or competence to adjudicate in any matter presented or filed before it. Because of this threshold nature of the issue, any case or proceedings heard or decided by the Court in absence or lack of jurisdiction amounts to a mere nullity, however well it might have been conducted -See MADUKOLU Vs. NKEMDILIM (1962) 2 SCNLR 342; (1962) NSCC 374; ATTORNEY GENERAL, ANAMBRA STATE Vs. ATTORNEY GENERAL, FEDERATION (1993) 6 NWLR (pt.302) 692; and ATTORNEY GENERAL, KANO STATE Vs. ATTORNEY GENERAL, FEDERATION (2007) ALL FWLR (Pt. 584) 238 at 251-252.
It is a common ground in the present case that the trial Court (Federal High Court) is not empowered by it rules of practice (Federal High Court Civil Procedure) Rules 2002 – supra) to make an Order of non-suit. On the above cited authorities, the trial Court therefore lacks the requisite jurisdiction to make an Order of non-suit. Where a Court lacks jurisdiction to make an Order and it proceeded to make it, an appellate Court should strike it out – Sec CRAIG Vs. CRAIG (supra); OLAYJOLE Vs. OSO (1969), All NLR 281; OGBECHIE Vs. ONOCHIE (1988) 1 NWLR (pt.70) 370; SANUSI Vs. MAKINDE (1994) NWLR (pt.343) 214; and EGWU Vs. MADUNKWU (Supra at page 585 of the report). Another point raised which is also linked to the issue of jurisdiction arising from the respondents brief is on the trial Courts lack of jurisdiction or competence to make the Order (of non-suit) that has not been sought or asked for by the parties. This is contrary to the well settled principle of law that a Court should confine itself to the claims or reliefs sought or asked for by the parties before it and does not therefore make a practice of granting reliefs or orders not sought.
The effect of granting such reliefs or Orders not sought for is that the Court making it is lacking or has gone outside its powers; jurisdiction and competence in making or granting such a generous order or relief.
Where that happens an Appellate Court will also set aside such a lavish and generous order of the trial Court that is unauthorized. -See KALIO Vs. DANIEL KALIO (1975) 2 SC 15; OKEOWO Vs. MIGLIORE (1979) SC 38; OMOBORIOWO Vs. AJASIN (1984) 1 SCNLR 108; ODUNZE Vs. NWOSU (2007) 13 NWLR (Pt.1050) 1 at 46 -50; and AKINDURO Vs. ALAYA (2007) 15 NWLR (pt.1057) 312 AT 331 – 332.
In view of my above consideration of the twin issues (issues 1 and 2), the said issues as formulated in the appellants brief must be resolved together with their corresponding grounds (ground I and 2) in favour of the said appellants. Consequently, the order of non-suit made by the learned trial judge without jurisdiction or power to make such an order which was made without hearing the parties and in breach of their right to fair hearing should be struckout. I accordingly hereby strike it out.
Under the third issue, the appellant’s main submission is predicated on the non-evaluation or improper evaluation of the evidence they adduced at the trial Court that led the trial judge to hold that they did not adduce sufficient or credible evidence to establish their claim against the respondent. They asserted in this regard that they were able to prove their case against the respondent through the two witnesses and a number of documentary exhibits (exhibits 1-12) but the learned trial judge erroneously held otherwise. This error of the learned trial judge is said in the appellants brief to cast upon them as the plaintiffs a higher burden than what the law requires from them, which is no more than to prove their case on the preponderance of evidence or on balance of probabilities. They rely on the submission on the authorities of FIRST BANK OF NIGERIA PLC Vs. ABDULKADIR ONIYANGI (2000) 6 NWLR (pt.661) 497 AT 505; BANK OF WEST AFRICA LIMITED Vs. ALHAJI LAWAL BALOGUN (1970) NSCC (VOL 6) p. 41 at; DANJUMA Vs. DOGARI (1998) 6 NWLR (pt. 553) 234 AT 257. The appellants also emphasized the respondents failure to call any witness in proof of their defence as contained in their pleadings and submitted that this amounted to the abandonment of their averments in the said pleadings which alone go to no issue in absence of any evidence to establish the facts averred. In support of this submission the appellants cited the cases of CHIEF OYELAKIN BALOGUN Vs. ALAHAJI BUSARI AMUBIKOHUN (1985) 3 NWCR (Pt.11) 27 at 29; FRANCIS ANOZE Vs. FIRST BANK OF NIGERIA LIMITED (2000) 1 NWLR (pt.639) 78 AT 94, AND WOLUCHEM Vs. GUDI & ORS (1981) NSCC 214 at 215. The appellants finally under the issue urged this Court to hold that they have been able to establish their case at the lower Court by the preponderance of evidence and to resolve the issue in their favour by entering judgment in their favour as was done in SANUSI Vs. MAKINDE (supra).
In reply to the above submission under their corresponding third Issue, the respondents admitted their failure to adduce evidence in support of their pleadings but pointed out that the failure did not relieve the appellants of their burden as plaintiffs to prove or establish their claim by credible and acceptable evidence especially in the present case where declaratory reliefs as well as the ancillary reliefs of general and special damages were sought for or claimed by the said appellants. It is submitted that in such a cases and even where the respondents as (as defendants) fail to adduce any evidence, the appellants still have the duty to adduce sufficient admissible and credible evidence in order to justify the grant of the reliefs they claimed -See OKEKE Vs. AGBODIKE (1999) 14 NWLR (638) 215 at 217; O.A.A. CO-OPERATIVE SOCIETY Vs. NACB LIMITED (supra); ONYEJEKWE v. ONYEJEKWE (1999) 3 NWLR (pt.596) 482 AT 484; cited in support of the above submission. It is suggested in the brief that in line with their claims at the Lower Court, the Appellants had the burden to adduce credible evidence to prove the followings:-
“(i) that they were recalled to the service of the 1st Respondent and that they worked within the dates claimed (i.e. December 1996 to October 1999).
(ii) that they thereby resumed their employment and remained as employees of the 1st Respondents entitled to the same salaries and allowances applicable at that time;
(iii) that the 1st & 2nd Respondents were in breach of the purported contract of employment; and
(iv) that they were entitled to the ancillary claims for special and general damages as claimed.” -See paragraph 2.13 of the brief. In this regard reference is made to the judgment of the learned trial judge (at pages 109- 111) of the record of appeal which is quoted in extenso and in which the learned trial judge made a painstaking evaluation or review of the evidence adduced by the appellant and concluded that it was neither credible nor sufficient to warrant the grant of the reliefs they sought at the trial Court. Thus it is contended that the appellants who were held to have merely adduced contradictory, incredible and weak evidence before the Lower Court did not discharge the evidential burden of proof cast upon them by the Law. The case of NGILARI Vs. MOTHER CARE LIMITED (1999) 13 NWLR (pt. 636) 626 AT 636 is cited by the respondents in support of the principle requiring special damages to be pleaded and strictly proved by the plaintiff. In conclusion, this Court is urged by the respondents to hold that the learned trial judge had properly evaluated the evidence adduced by the appellants and rightly concluded or found that it was not credible or sufficient enough to warrant the grant of their claim and consequently to uphold the said findings of the learned trial judge. Finally we are urged by the respondent to enter a verdict of dismissal of the appellants claim at the Lower Court.
From the above submission’s of the parties under their respective third issues, it is apparent that the main complaint under the issue is against the non-evaluation or improper evaluation of the evidence presented before before the lower Court or adduced by the appellants in proof of their claims.
In other words what the appellants are asking this Court to do under the 3rd issue in to re-evaluate or reassess the evidence adduced by them at the trial Court with a view to making another finding or conclusion (different from that of the said trial Court) in their favour by entering judgment for them.
On this request by the appellant under the issue, it is pertinent to begin my consideration by stating the general rule on evaluation of evidence by the trial Court. It is settled under the general rule that it is the primary function and duty of the trial Court which had the singular advantage of seeing, hearing and assessing the parties witnesses to conduct the evaluation of evidence, the ascription of probative value thereto and making findings of facts to the exclusion of an appellate Court which did not have similar opportunity. There are however some exception to the above general rule such as where such evaluation and findings or their conclusion are not based on the credibility of the witnesses as a result of their demeaneur in Court or of the Courts impression on them. In such cases an appellate Court is in as good a position to make its own evaluation or findings and to arrive at its own conclusion based on the inference it can make or draw from the admitted facts in the record -See AKJNLOYE VS. EYIYOLA (1968) NMLR 92; WOLUCHEM Vs. GUDI (1981) 5 SC 291; AMADI Vs. NWOSU (1992) 5 NWLR (PI. 241) 273; ADEGBITE Vs. OGUNTOLU (1990) 4 NWLR (Pt.146) 578; AKPAPUNA Vs. OBI NZEKA n (1083) 2 SCNLR 1; SANUSI Vs. MAKJNDE (Supra at p. 230 of the report); and ACB Ltd Vs NWADIOGBU (1994) 7 NWLR (PI. 356) 330 at 343.
Another exception to the above general rule is where the trial Court in its evaluative function arrived at a perverse finding conclusion or decision. A perverse decision or finding is one that is persistent in error, different from what is reasonable or required and against the weight of evidence. A decision is perverse where the trial judge acted in disregard of the printed evidence on record before him or where he shuts his eyes from the obvious and takes into account extraneous matters which he ought not to consider – See KADUNA Vs. ILES LTD Vs. UMAR (1994) 1 NWLR (pt.319) 143; and ATOLAGBE Vs. SHORUN (1985) 1 NWLR (Pt. 2) 360.
In all the above exceptions, an appellate Court has a right to interfere or disturb the wrong findings or evaluation of evidence by the trial Court and make it’s own findings from the evidence on record and in order to do justice or to avoid miscarriage of the justice to the party affected by the error of the trial Court. In exercise of its function or duty in the evaluation of evidence, the trial Court is required to make a full evaluation and appraisal of the evidence adduced or proffered by the parties before it, ascribe probative value to it, place the evidence on an imaginary scale of justice, and weigh or balance it properly in order to determine the party in whose favour the imaginary scale tilts, Thereafter the trial Court making the exercise can make its findings and apply the relevant law to the facts in order to come to its logical conclusion or holding – See MOGAJI Vs. ODOFIN (1978) 4 SC 91; WOLUCHEM Vs. GUDI (1981) 5 SC 291; CHUKWU Vs. NNAJI (1990) 6 NWLR (Pt. 156) 363; and DURU Vs. NWOSU (1989) 4 NWLR (Pt. 113) 24.
In applying the above principles on the present case, some features or factors that are peculiar to the case need to be highlighted. These are as follows:-
1. The nature of the appellants claim before the lower Court ( as reproduced above) which include declaratory reliefs and the burden of proof required of the said appellants to establish such claims.
2. The default or failure of the respondents to adduce evidence in proof of their pleadings and the effect of such failure on the appellant’s discharge of their burden of proof.
3. The effect of the striking out or setting aside of the order of non-suit wrongly made by the trial Court in the case and whether or not from the established facts the appellants have proved or established their case to entitle them to a judgment, entered in their favour.
4. Whether the learned trial judge properly evaluated the evidence called by the appellant which led to his conclusion that they did not proffer or adduce sufficient or credible evidence to support their case and whether this is an appropriate case for this Court to interfere with the said evaluation or disturb his findings or conclusion.
On the 1st of the above items, the appellants claim before the trial Court (as per paragraph 15 of their amended statement of claim at page 63 of the record) are mainly predicated on the declaration that they were recalled from their retrenchment which occurred sometime in 1996 and were promptly reabsorbed and resumed work between December 1996 and January 1997. After their recall, they were not paid throughout the period of their re-engagement. It is trite that the relief sought by the appellants at the trial Court being declaratory is a discretionary one which should only be granted in circumstances where the court is fully convinced and is of the opinion that the party seeking it is, when all the facts are taken into account, fully entitled to the exercise of the Courts discretion in his favour. Moreover, a Court does not grant a declaratory relief on an admission or default of either pleadings or evidence of the opposing party. Despite such default or admission, the Court must be satisfied that the claimant on his evidence is entitled to the relief claimed.
He will be so entitled upon proof by cogent, credible, sufficient and reliable evidence to show his entitlement to the declaration sought. It is also his sole duty to do so (i.e. to establish his case) and not that of the opposing party to disprove his said claim. Consequently where the claimant fails to adduce such cogent, credible or reliable evidence in proof of his claims, such claim(s) must be dismissed by the Court -See MOTUNWASE VS. SORUNGBE (1988) 5 NWLR (pt.92) 90; KODILINYE Vs. ODU (1935) 2 WACA; FABUMI Vs. ACBE (1985) 1 NWLR (pt.2) 299; BELLO Vs. EWEKA (1981) ISC 101; ACBANA Vs. OWA (2004) 13 NWLR (pt.889) 1; and ANYARU Vs. MANDILAS LTD (2007) ALL FWLR (Pt.382) 1047 at 1860. It is therefore wrong for the appellants in the present case to rely on the usual or regular standard of the burden of proof said to be on the balance of probalities and to assert as per their submission that they have discharged the burden in their claim for declaratory relief, which requires a higher quality of evidence and burden to make them entitled to the said reliefs.
Also in the same vein, the appellants cannot rely on the respondents failure to call evidence to establish or prove their case (under the rules of pleadings) because that failure or default does not relieve or absolve them of their burden to prove or establish their claims as required by Law.
Thus the appellants should rely on the strength of their own case rather than on the weakness of the defence. The position should be the same even where the respondents fail to or make a default in both the filing of pleadings or the calling of evidence. I am of the view that the 2nd of the above listed item or question has also been answered.
On the 3rd and 4th questions, the procedure recommended by the Supreme Court and this Court is that where a trial Court wrongly makes an order of non-suit, as in the instant case, an appellate Court will or should interfere to set aside the wrong order and to make an appropriate order (whether to grant the claim or to dismiss it) considering the evidence available and the circumstances of the matter on appeal -See USIKARO Vs. ITSEKIRI LAND TRUSTEES (1991) 2 NWLR(pt.171) 150; ASIEMO Vs. AMOS (1975) 2 SC 57; KORO Vs. SAFIAP (NIG) LTD (1977) 2 SC 123; SANUSI Vs. MAKINDE (Supra at P.231 of the report), and ANYAKWO Vs. ACB LTD (Supra) at (P. 123). I entirely agree with and I am bound by the above directive of our superior Courts. I however wish to point out that the order of non-suit by the learned trial judge in the present suit was not only found to be wrongly made but was also a nullity for want of jurisdiction and for breach of the rule of fair hearing. As such, it cannot be set aside since as a nullity it is as if it has never existed at all. To that extent it should be struck out rather be set aside. It is trite that where an appellate Court finds the decision or proceedings of the trial Court to be a nullity for want of jurisdiction or for breach of the right of fair hearing, It should declare it so and strike out such a decision or proceeding which is a nullity -See OKOYE Vs. NIGERIAN CONSTRUCTION AND FURNITURE CO. LTD (1991) 6 NWLR (pt. 199) 501; SADIKU Vs. AG LAGOS STATE (1994) 7 NWLR (PI. 355) 235 AT 251; AND LAWAL Vs. OKE (2001) 7 NWLR (Pt. 711) 88.
In my consideration of the available evidence on record before the trial Court, I have carefully perused the comprehensive review or appraisal of the evidence adduced by the appellants in proof of their claims at the trial Court by the learned trial judge. The learned trial judge in my considered view should be commended for making a painstaking survey and review of the said evidence in his judgment at pages 110 -111 of the records. In the exercise, which was satisfactorily conducted, the testimonies of the appellant’s two witnesses (PW1 & PW2) as well as the documentary exhibits tendered by the appellants (Exhibits 1 – 12) were considered and scrutinized by the said learned trial judge. In the course of the scrutiny, it was found that the appellants who asserted that the respondents recalled them to service did not produce any letter as to the alleged recall. Rather when they could not also produce the daily attendance register to show their attendance during the period in question they resorted to the “ON DUTY” identification tags. The learned trial judge even though he admitted the said tags found that they contradicted the appellant’s assertion that they worked for the respondents from December 1996 to December 1997. Some of the tags, even if accepted as evidence that the appellants worked on recall as claimed showed on their face that they were to expire on 31/12/2000. This clearly shows the fallacy and unreliability of what is contained in the said tags. The other document sought to be tendered (to wit Exhibit 1 -5) are the internal circulars issued to the Head of Engineering Department of the respondent. These were found to be public documents, which were not certified as required by the Law of Evidence (section 109 (a) (ii) of the Evidence Act) and therefore rightly expunged or disregarded by the learned trial judge. The bulk of the other documentary exhibits tendered by the appellants were merely letters of demand of their salaries and threat from their solicitors (See Exhibits 8- 12).
From the above review of the available facts I am in complete agreement with the findings of the learned trial judge in his judgment where he held (at page 111 of the record) thus:
” In view of the foregoing observation, I do not see any sufficient credible evidence to warrant my granting the reliefs being sought by the plaintiffs.”
The above findings based on comprehensive and proper evaluation of evidence by the learned trial judge cannot be faulted. It is pertinent to state that he has devoted a large portion of his 11 page judgment (from pages 101 – 111 of the record) in reviewing and lucid examination of the evidence adduced in the case and weighing it in the imaginary scale before he arrived at his above finding or conclusion.
Consequently, I am of the humble view that this Court should not interfere or disturb the said finding, which is based on evidence and therefore not perverse – there is no of allegation of perversity by either party in their briefs. Issue 3 as considered above must be resolved (together with its corresponding ground of appeal) against the appellants.
Since issue 3 is the determining issue in the present appeal (issues 1 and 2 having been conceded), the resolution of it should affect the appellants appeal. In the result and in my review exercise, I find that the appellant’s request for judgment to be entered in their favour cannot be granted, as they have not discharged their burden of proof. It is only when the plaintiff discharges his burden of proof that the said burden will shift to the defendant as the party who would fail if no evidence is adduced-onus probandi – See AJIDE Vs. KELANI (1985) 11 SC 124; AND YUSUF Vs. ADEGOKE (2007) 7 ALL FWLR (Pt.385) 384 AT 405. Where a plaintiff fails to discharge his burden by calling credible and cogent evidence as in the present case his case has collapsed and should be dismissed by the trial Court.
In my final consideration of the result of the present appeal, I found that the appellants have succeeded under the 1st and 2nd issues which have been resolved in their favour but have failed under the 3rd issue resolved against them. Consequently their appeal should be partially allowed under the successful issues (issues 1 and 2) but dismissed under the 3rd issue resolved against them. Accordingly, I hereby strike out the order of non-suit made by the trial Court but affirm its findings and conclusion that the appellants failed to establish or prove their case at the said trial Court by credible reliable or sufficient evidence. The appellant’s action before the said trial Court should therefore be dismissed and is accordingly so dismissed by me. Under the circumstances of the case, I make no order as to costs leaving each set of the parties to bear their own costs.
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A., Jp+.: I agree with and adopt as mine, the lead Judgment prepared by my learned brother Adamu JCA, OFR. I shall however add, by way of an elucidation, a few words on the issue of the order of non-suit made by the learned trial Judge.
A decision to non-suit could ordinarily come under the inherent powers of a Court to take a point suo motu where it deems appropriate, given the special circumstances of each case Section 6(6) of the Constitution of the Federal Republic of Nigeria (1999). The inherent jurisdiction of a Court has been defined as
“…. That which is not expressly spelt out by the Constitution or in any statute or rule but which can of necessity, be invoked by any Court of record to supplement its express jurisdiction or powers conferred on ….. Courts of record by the Constitution.” (Refer Alh. M.U. Gamber Vs P.W. (Nig) Ltd and 6 Ors (1990) 5 NWLR Pt.151 P473 at 481, following the case of Akilu Vs Fawehinmi (No.2) (1989) 2 NWLR (Pt.102) P122 at 197).
Where a Court is seized of a case which it has jurisdiction to hear and determine, then it can exercise its inherent power to do that which it deems necessary to be done in such a matter. In the case of the Federal High Court, Section 9(1) and (2) of the Federal High Court Act Cap F12 Laws of the Federation of Nigeria 2004, provides as follows: –
1. The Jurisdiction vested in the Court shall, so far as practice procedure are concerned, be exercised in the manner provided by this Act or any other enactment or by such rules and orders of Court as may be made pursuant to this Act.
2. Where a matter arises in respect of which no provision or no adequate provisions are made in the Rules made under subsection (1) of this Act or in any other Act, or enactment, the Court shall adopt such procedure as it deems fit to do substantial justice between the parties concerned.
In the case of Adeleke Vs Raji (supra) Pg145, the Supreme Court held that a Court is entitled in its discretion, to take points suo motu if it sees fit to do. However, the apex Court cautioned that where the points are so taken, the parties must be given the opportunity to address the Court before a decision on the points is made by the Court.
Where the power exists, an order of non-suit is entered when the trial Court finds that there exist legal rights which should be resolved but which the parties have each failed to adduce sufficient materials/facts in substantiation of their respective case. There is not sufficient facts to enable the Court decide one way or the other but an order of dismissal would obviously occasion a miscarriage of justice, in the instant case the Federal High Court Rules omits to provide for such power. However, the Rules allows the Court to fill in its lacuna by the application of rules provided in the Lagos High Court Rules, It appears to me that it lies with the Judge to decipher from the facts placed before it whether or not to make an order of non-suit.
The problem with an order of non-suit always arises with the failure of the learned trial Judge to recall the parties their learned Counsel and direct them to address the Court on its opinion to enter an order of non-suit. Where the order of non-suit is made without the participation of the parties, such an order is liable to be struck down and quash as a nully.
In the case of Alhaja Saratu Adeleke Vs Alhaja Morinatu Raji and Raimi Raji, (2002) 13 NWLR Pt783 P143 at 153-154 the Supreme Court held that: –
“Where a Court finds some substance in entering an order of non-suit, striking out or retrial, it is important to hear the parties to address the Court on the desirability of making such an order. To make any of the orders, when not asked for by any of the parties and when the parties where not asked to address the court on it especially to 3rd parties not Joint in the suit may result in injustice.”
Herein lies the error of the trial Court in the instant appeal. Having found, from his analysis of the testimonies of to the parties that an order of non-suit would be the appropriate order, the learned Judge should have invited the parties to address him on, that point. It would however not be necessary to invite the parties had an order of non-suit been included as or alternative prayer and both parties had an opportunity to address the Court during trial.
For this and the fuller reasons given in the lead Judgment, I too hereby set aside and quash the order of non-suit made by the trial Court.
I abide by all other orders made in the leads Judgment.
HUSSEIN MUKHTAR, J.C.A.: I have been privileged to read in advance the judgment just delivered by my learned brother Dalhatu Adamu, JCA in which all the issues raised were meticulously dealt with. I entirely agree with the reasoning and conclusion reached therein and adopt same as mine.
It is however, pertinent to stress that the learned trial Judge having found that the appellants did not prove their case by credible evidence on preponderance of probabilities had no other business before him than dismissing such claim. There being no law empowering the court to non-suit the appellants action, the court below was certainly in error to have so ordered.
Non-suit in effect simply allows such plaintiff, who fails to show a valid and justiciable claim against the defendant or prove his claim by evidence, to have a second bite at the cake by relitigating the same matter afresh. An exercise of discretion by a court of law in that regard could
hardly be said to have been done judicially and judiciously. Apart from the obvious dictates of the circumstances to dismiss a frivolous or unproven claim, there is also a desire, in the interest of justice, to put an end to litigation rather than recycling it at the instance of a defeated plaintiff against a defendant who has been unduly dragged to court. This court in UBN PLC VS DAPPA-BIRIYE (2000) 12 NWLR (pt 682) 588 at p. 593 per Pats-Acholonu, JCA (as he then was) (of blessed memory) held thus:
“The dismissal of a suit by a trial court is considered a proper exercise of judicial discretion when the trial court weighed all the circumstances of the case in the interest of justice and balance of interest of the parties involved, including the balance of convenience and disadvantages which might be suffered by any of the parties concerned.” (See RODRIGUES VS PUBLIC TRUSTEE (1977) 4 S.C. 29)
The court in the same judgment at page 592 described non-suit as injudicious in the following terms:
“An order of non-suit is injudicious in that it is a system where a plaintiff who has totally failed to convince the court that he is entitled to judgment is unwittingly given another chance to institute another action in court.”
The court also stressing the need for an end to litigation has at page 595 of the judgment expressed the following views:
“Although it is desirable that people should be given the opportunity to litigate in order to avoid tumults, riots and affrays, yet if litigation is not restricted, it might be within the power of the wealthy or the plain mischief maker, to cause nuisance to fellow subjects by spurious litigation, which disgruntled subjects might adopt as a hostile attitude to the state whose machinery is being so recklessly invoked against them.
It is for the general welfare that an end be put to litigation.”
The court below having found that the appellants did not adduce sufficient credible evidence to prove their claims or to warrant granting the reliefs sought, ought to have dismissed such an unmeritorious action.
For the foregoing and the more detailed reasons as contained in the lead judgment, I do not hesitate striking out the null order of non-suit made by the lower court on the 2nd October, 2002 and dismissing the appellant’s action for lacking in merit.
I subscribe to the consequential orders made by my learned brother in the lead judgment.
Appearances
J.O. Odubela with O.T. Opara (Mrs.) and R. AdeniyiFor Appellant
AND
S.A. OlaitanFor Respondent
