THE REGENCY COUNCIL OF OLOTA OF OTTA & ORS. v. CHIEF OLUFEMI SODEINDE & ORS
(2013)LCN/6104(CA)
In The Court of Appeal of Nigeria
On Thursday, the 18th day of April, 2013
CA/I/34/97
RATIO
“As for the remaining grounds, I am in agreement with the appellants to the effect that they flowed from the final judgment of the lower court. By Section 241(1)(a) of the 1999 Constitution, appeal is as of right against the final judgment of the lower court, hence leave of court is not necessary for the remaining grounds. See FHA v. Kalejaiye (2010) 19 NWLR (Pt.1226) 147, Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (Pt.91) 622, 7-Up Bottling Co. Plc. v. Abiola & Sons. Bottling Co. Ltd. (2002) 2 NWLR (Pt.75) 40 at 57 – 58, Inyang v. Ebong (2002) 2 NWLR (Pt.751) 284 at 321, Etim v. I.G.P. (2001) 11 NWLR (Pt.724) 266, Ogumka v. C.A.C. (2010) LPELR – 489 (CA).”Per JAURO, J.C.A.
“Cause of action has been defined to mean fact or facts which establish or give right to a right of action. It is the factual situation which gives a person a right to judicial relief. See Egbe v. Adefarasin (1987) 1 SC 1 at 34, Oshoboja v. Amuda (1992) NWLR (Pt.250) 690, Adah v. NYSC (2004) 13 NWLR (Pt.891) 639, Sanda v. Kukawa Local Govt. (1991) 2 NWLR (Pt.174) 379, Peacegate Oil & Gas Ltd v. Hydrive (Nig.) Ltd (2012) 17 NWLR (Pt.1329) 391 at 403.”Per JAURO, J.C.A.
“It is trite law that the fundamental principle of consolidation of action is that although the action consolidated are tried and determined together in the same proceedings each remains a separate and distinct action and separate judgment given at the end of the common trial. The main objective of consolidating actions is to save time and costs. See Dugbo & Ors. v. Kporoaro & Ors. (1958) WRNLR 73, Lediju v. Odulaja (1943) 17 NLR 15, Diab Nasr v. Complete Homes Entenp, (Nig) Ltd (1977) 5 SC 1 at 11, Kalu v. Chima (2007) LPELR – 8309 (CA).”Per JAURO, J.C.A.
“…..The proper thing for the court to have done on that date when appellants counsel withdrew, was to have adjourned the matter. This would have given the appellants several options, to either engage a new counsel, make amends and renew their relationship with the old counsel or appear by themselves and put through their defence. See Aluko v. Ajiboye (2012) All FWLR (Pt.653) 1953 at 1972 – 1973, per Uwa, JCA, Ndukauba v. Kolomo (2005) 4 NWLR (Pt.915) 411 at 430 – 431, S.B.N. Plc v. B.A.O. Motors (Nig) Ltd (2004) 7 NWLR (Pt.873) 579 at 600.”Per JAURO, J.C.A.
“The lower court by a portion of the ruling reproduced above closed the case of the defendants. With due respect to the learned trial Judge, having closed the case of the defendants, fair hearing demands that they be given an opportunity to atleast address the court. That was also not done, as the court proceeded to take the address of counsel for the plaintiffs immediately, Hence the defendants were equally denied the opportunity to address the court, which also amounted to a breach of fair hearing. See Obodo v. Olomu (1987) 3 NWLR (Pt.59) 111, Akabogu v. Akabogu (2003) 9 NWLR (Pt.826) 445.”Per JAURO, J.C.A.
“The principle of fair hearing is fundamental to all court procedure and proceedings; the absence of it vitiates the entire proceedings no matter how well conducted. The principle of fair hearing is not only a common law right but is also a right guaranteed under Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria or S.33(1) of the 1979 Constitution, whatever the case may be, operational at the time of the decision leading to the present appeal. Fair hearing under the above Section of the Constitution means nothing less than a trial conducted according to all the rules, to ensure that justice is done to both parties in compliance with the old and known principles of natural justice, these are, audi alteram partem and nemo judex in causa sua. In other words, a party should not be denied of the opportunity of fully presenting his case and full opportunity to present his defence.”Per UWA, J.C.A
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
1. THE REGENCY COUNCIL OF OLOTA OF OTTA
Chief J.A. Dosunmu – Chairman
Chief S.A, Adesanya – Member HCT/66/90
Chief Hamsat Ojo – Member
2. CHIEF LAWANI KOSEBINU (The Akogun of Otta, Akogun)
AND
1. O.T. DADA
2, LASISI KOSEBINU
3. WAHEED GBADAMOSI
4. SAMUEL ADENIJI BAMGBOSE
5. RABIATU ALANGBE HCT/74/90
6. OPALEYE AINA
7. LASISI OBA
8. TESILIMI ODU
9. OSHORU TOGO Appellant(s)
AND
1. CHIEF OLUFEMI SODEINDE (Representing Gbalafa Ruling House)
2. AMOS SONIREGUN (Representing Soniregun Ruling House) HCT/66/90
3. AYISAT OMOSANYA (Representing Omosanya Ruling House)
AND
CLIEF BABALOLA ADEWUSI (Baale of Iju Otta) HCT/74/90 Respondent(s)
ADAMU JAURO, J.C.A. (Delivering the Leading Judgment): The appeal herein is against the judgment of the Ogun State High Court, Otta delivered on 28th March, 1995 by Hon. Justice G. A. Bakre, in consolidated Suits Nos. HCT/66/90 and HCT/74/90.
A summary of the background facts culminating in this appeal, is hereby made as follows. The three plaintiffs in Suit No. HCT/66/90 instituted the action against the Regency Council of the Olota of Otta and Chief Lawani Kosebinu, the Akogun of Otta in the Ogun State High Court, Otta. In their amended writ of summons and paragraph 30 of the amended statement of claim dated 28th February, 1993 the plaintiffs claimed against the defendants jointly and severally as follows:
“A declaration that a Resolution passed by Otta Chieftaincy Committee on May 8, 1970, (and with the defendants continue to believe in and apply in the discharge of their functions in relation to Otta Chieftaincy Affairs) namely:-
‘In all village of places under the Otta District Council where the Otta District Council Chieftaincy Committee is the prescribed Authority for the appointment of minor chiefs, the Baales of all such villages of places must be sons of the land-owner and that although strangers can be honoured with chieftaincy titles other than that of the Baale, such honour shall have no political functions and they shall have no right to sit on or take part in the chieftaincy affair of the town’.
Is ultra vires, unconstitutional, contrary to the Chiefs’ Law, contrary to customary law of Iju and therefore illegal void and of no effect”.
See pages 95 and 99 of the record.
In suit No. HCT/74/90, Chief Babalola Adewusi, Baale of Iju Otta instituted the action against O.T. Dada and eight others in the same Ogun State High Court, Otta. By paragraph 22 of his amended statement of claim filed pursuant to order of court made on 15th January, 1993, the plaintiff claimed the following reliefs against the defendants:
“1. Declaration that the appointment of the defendants as minor Chiefs in Iju Otta is contrary to Iju Otta Custom and therefore null and void.
2. Declaration that the appointments of the 1st, 2nd, 3rd, 4th, 5th, 7th, 8th and 9th defendants into various chieftaincies in Iju Otta purportedly made by the late Olota of Otta on or about 19th June, 1990 are ultra vires, illegal and void.
3. Injunction restraining the 1st, 2nd, 3rd, 4th, 5th, 7th, 8th and 9th defendants from parading themselves as the ‘Chiefs’ pursuant to the aforesaid illegal appointments”.
See page 93 of the record.
The defendants filed their statement of defence to both suits dated 6th May, 1991. The plaintiffs filed replies to the statement of defence in both suits, respectively. The defendants in Suit No. HCT/66/90 filed an amended statement of defence dated 15th September, 1993. A reply to the amended statement of defence dated 10th March, 1994 was filed by the plaintiffs. The two suits namely, HCT/66/90 and HCT/74/90 were consolidated pursuant to an order of court made on 10th August, 1993. See page 123 of the record. The plaintiffs opened their case on 28th March, 1994. Three witnesses were taken and the cross examination of the third witness adjourned to 18th April, 1994. In interim the defendants engaged the services of Chief Milton P. Ohwovoriole SAN. The learned senior counsel filed a preliminary objection to the competence of the action and the jurisdiction of the lower court. The preliminary objection was heard and dismissed in a ruling delivered on 29th June, 1994. See pages 183 to 193 of the record.
The defendants applied for leave to appeal against the ruling and a stay of proceedings in the lower court. The application for stay of proceedings was refused. The third witness for the plaintiff was cross examined and the plaintiff’s case closed on 21st September, 1994. The defendants opened their defence on 17th October, 1994 wherein two witnesses testified and were cross examined. The case was then adjourned to 8th and 9th December, 1994 for continuation of defence. On 8th December, 1994 the court could not accommodate the matter due to pressure of work, hence a further adjournment to 16th December, 1994. See page 246 of the record. On 16th December, 1994, another application for stay of proceedings was argued. The application was based on an interlocutory appeal filed pursuant to extension of time granted by this court. A ruling refusing the stay was delivered on 20th December, 1994 and the matter adjourned to 9th January, 1995.
On 6th March, 1995 being the next date the case came up for hearing, the learned senior counsel for the defendants wrote to the court that he will no longer participate in the proceedings. Based on this development, the learned senior counsel for the plaintiffs urged the court to close the defendant’s case and allow the plaintiffs to address the court. In a bench ruling delivered immediately, the defendant’s case was closed and the plaintiffs were called upon to address the court. Based on the aforesaid ruling, the plaintiffs addressed the court instantly. The court asked the defendants what they proposed to do, to which they replied that they intend relaying all that happened to their counsel and people. Thereafter the court adjourned the case sine die for judgment, which was delivered on 28th March, 1995 in favour of the plaintiffs.
Aggrieved by the aforementioned decision, the defendants challenged same by a notice of appeal dated 7th April, 1995. A further amended notice of appeal dated 30th May 2003, containing thirteen grounds of appeal was filed on 3rd June, 2003 though deemed properly filed on 27th November, 2003. In compliance with the Rules of Court, briefs of argument were filed and exchanged. The appellants further amended brief of argument is dated 30th May, 2003 and filed on 3rd June, 2003 but deemed properly filed on 27th November, 2003. The amended appellant’s Reply brief dated 23rd October, 2012 and filed the same date, pursuant to an order of court made on 17th October, 2012. The further amended respondents brief is dated 17th July, 2008 and filed 29th July, 2011 though deemed properly filed on the 10th May, 2012. The respondents also filed a preliminary objection.
On the date fixed for the appeal, Mr. Adebayo Oyagbola leading Mr. O. M.Giwah for the respondents, intimated the court that they had raised a preliminary objection in their brief of argument. Learned counsel adopted and relied on the argument in support of the preliminary objection contained on pages 3 and 4 of the further amended respondents brief and urged the court to allow same. Mr. S.O. Ajayi, leading Mrs. Tosin Ogwazzy, Mr. J.O. Abdulsalam, Adebayo Afees Esq., and Olalekan Akanbi Esq., for the appellants, adopted the appellants brief and the repfy brief. Learned counsel urged that the preliminary objection be dismissed and the court should allow the appeal and set aside the decision of the lower court.
Learned counsel for the respondent adopted the respondents brief and urged the court to dismiss the appeal based on the preliminary objection and the argument proffered in the respondents further amended brief.
The Appellants formulated seven issues for determination on pages 5 and 6 of the appellant’s brief, as follows:
“1. Whether the Appellants right to fair hearing was not breached, when the trial judge failed to afford the defendants/appellants an opportunity to present their case and whether the breach, has not rendered the eventual decision of the court a nullity? Grounds 1, 2 and 3.
2. Whether in view of the decision in the case of Mohammed v. Olawunmi (1993) 2 NWLR (Pt. 287) pp.254 S.C. The learned trial judge was right to have continued with the trial of the two consolidated suits despite the existence and to his knowledge of an appeal and a motion for stay of proceedings before the Court of Appeal?
Ground 4.
3. Whether in view of the decisions of the Supreme Court in:
(a) Utih v. Onoyivwe (1991) 1 NWLR Pt. 166 page 166 at page 241 S.C.
(b) Mustapha v. Governor of Lagos State (1997) 2 NWLR Pt. 58 page 539 S.C.
The trial court had jurisdiction to determine these suits filed in 1990 regarding chieftaincy matter that arose before the promulgation of the Constitution of the Federal Republic of Nigeria on the 1st of October, 1979?
Ground 5.
4. Whether in view of the decision of the Supreme Court in Eguavense v. Amaghizemuwea (1993) 9 NWLR. Pt. 315 page 1 SC page 10 to 11 and part 3 of Chiefs Law Cap. 20 of the Chief Law of Ogun State (1983) the learned trial judge was right in assuming jurisdiction and determining the two consolidated suits when it was not shown by the Respondents that they had exhausted the remedies available to them under sections 22 and 28 of the same law;
Ground 6.
5. Whether in view of the decision of the Supreme Court in Odubeko v. Fowler & Anor (1993) 6 NWLR (Pt.308) 637 at 645 and sections (4)(1) Limitation Law cap. 61 of Ogun State, 1978 Vol. II at page 475, S.6(c) Interpretation Law Cap. 50 Laws of Ogun State of Nigeria 1978 and by virtue of Ogun State legal Notice No. 11 of 1980 which came into effect on the 11th of September, 1979 the Respondents’ consolidated suits were competent before the court?
Grounds 7, 8 and 9.
6. Whether the judgment of the learned trial judge in suit No. HCT/66/90 against the 1st Defendant in the cased was against a non-existent person or legal entity moreso when the Otta District Council which passed the resolution was not a party to both suits? And
Ground 10.
7. Whether in suit No, HCT/66/90 the learned trial judge gave judgment for the plaintiff for want are not claimed in the suit and against any party or parties not named in the Amended Writ of Summons in the case as a Defendant or Defendants in the case.”
The respondents on their part, formulated seven issues for determination, amongst which they adopted issue one of the appellant’s issues for determination. The said issues as contained on pages 4 and 5 of the respondents brief, are hereby reproduced thus:
“1. The Respondents adopt the Appellant’s issue 1 – whether the Defendants/Appellants’ rights to fair hearing were breached in view of the whole circumstances of this case.
2. Whether on the facts of this case the trial Court was right in conducting proceedings through to judgment notwithstanding the interlocutory appeal of the Appellants.
3. Whether having regard to Section 161 and 165 of the 1963 Constitution and the Chiefs Law Section 28 the trial Court had jurisdiction to entertain the two consolidated suits in this appeal.
4. Whether the failure of the Plaintiffs to utilize the procedure in Section 22 of the Chief Law to seek a redress of their grievances in the consolidated suits did not rob the trial Court of jurisdiction to try the cases.
5. Whether the two consolidated suits are not statute barred.
6. Whether Suit No. HCT/66/90 was properly constituted in the absence of the joinder of Otta District Council Chieftaincy Committee, the non-juristic nature of the 1st Defendant and its non-existence at the time the cause of action arose.
7. Whether the trial Judge was right in granting reliefs not claimed in the suits and whether he delivered any Judgment in suit No. HCT/74/90.”
A consideration of the preliminary objection, will however be made first before delving into the main appeal. The preliminary objection of the respondents is to the effect that, the six grounds of appeal contained in the notice of appeal dated 7th April, 1995 are incompetent. The respondents argued that the said grounds are a rehash of the original grounds contained in the notice of interlocutory appeal of 4th April, 1995. The respondents therefore contended that the said grounds, not really being complaints against the judgment appealed against are incompetent. In support, reference was made to the following cases: Awolesi Motors (Nig.) Ltd. v. Charles Adedotun Dina & Anor. (1994) 2 NWLR (Pt.326) 368 at 373, Aina v. UBA Plc. (1997) 4 NWLR (Pt.498) 181 at 187 – 188. By the same token the respondents argued that the issues formulated from the aforementioned grounds are incompetent having not arisen from grounds of appeal to the judgment but from grounds of interlocutory appeal. In support, reference was made to the following cases: Dtukpan v. Orovioyerbe (1967) NMLR 287 – 290, Adeleke v. Aserifa (1987) 3 NWLR (Pt.30) 575 at 577 and 585. The respondents further urged the court to strike out grounds 1 to 8 and 11 of the grounds of appeal and issues 1 to 5 distilled therefrom, on the grounds of failure of the appellants to obtain leave to raise the new issues. In support, reference was made to the following cases: Obioha v. Duru (1994) 8 NWLR (Pt.365) 631 at 646 – 647m Aniko v. Ade-John (1999) 8 NWLR (Pt.679) 401 at 411. The respondents urged that the preliminary objection be allowed.
In response, the appellants contended that the grounds of appeal being attacked by the respondents raised the issue of jurisdiction and competence of the lower court. The appellants argued that the issue of jurisdiction is so important that it can be raised anytime and even for the first time on appeal. In support, reference was made to the following cases: Western Steel Works Ltd v. Iron & Steel Workers Union (1986) 3 NWLR (Pt.30) 617 at 627, Pwol v Pwajok Jank (1992) 7 NWLR 120 at 128, Madukolu v. Nkemdilim (1952) 2 SCNLR 341. It was further contended that grounds 1, 2 and 3 were filed pursuant to leave granted by order of this court made on 27th November, 2003. As for the other grounds, the appellants argued that they flowed from the final judgment of the lower court and no leave of court is required to file, as appeal is of right pursuant to Section 241(1)(a) of the 1999 Constitution. The appellants therefore urged the court to refuse the objection of the respondents and dismiss same accordingly.
The six grounds of appeal under attack for being a rehash of the grounds of appeal in the interlocutory appeal, constitute a challenge to the jurisdiction of the lower court. The issue of jurisdiction is fundamental and pivotal to adjudication and can be raised at any stage of the proceedings, even at the Supreme Court or by the court suo motu. See Ejiofodomu v. Okonkwo (1982) 11 SC 74, Ezomo v. Oyakhire (1985) 1 NWLR (Pt.2) 195, Galadima v. Tambai (2000) 11 NWLR (Pt.677) 1; Madukolu v. Nkemdilim (1962) 2 SCNLR 341, Western Steel Works Ltd v. Iron & Steel Workers Union (1985) 3 NWLR (Pt.30) 617, Pwol v. Pwajok Jank (1992) 7 NWLR 120, The said grounds of appeal are therefore valid and competent.
In respect of the other limb of the objection, the other grounds were filed pursuant to an order of this court made on 27th November, 2003. Hence they cannot be said to be incompetent. As for the remaining grounds, I am in agreement with the appellants to the effect that they flowed from the final judgment of the lower court. By Section 241(1)(a) of the 1999 Constitution, appeal is as of right against the final judgment of the lower court, hence leave of court is not necessary for the remaining grounds. See FHA v. Kalejaiye (2010) 19 NWLR (Pt.1226) 147, Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (Pt.91) 622, 7-Up Bottling Co. Plc. v. Abiola & Sons. Bottling Co. Ltd. (2002) 2 NWLR (Pt.75) 40 at 57 – 58, Inyang v. Ebong (2002) 2 NWLR (Pt.751) 284 at 321, Etim v. I.G.P. (2001) 11 NWLR (Pt.724) 266, Ogumka v. C.A.C. (2010) LPELR – 489 (CA). Consequent upon the foregoing, the preliminary objection is lacking in merit and is hereby dismissed.
A consideration of the issues will now be made anon, starting with issue one and thereafter issue six will be considered, before proceeding to the remaining issues.
Issue One.
The complaint under issue one is that of the breach of the appellants right to fair hearing. The appellants submitted that the right to fair hearing is such that every citizen must be afforded an opportunity to make representation or present his case, and where a citizen is denied such an opportunity the eventual decision reached is a nullity. In support, reference was made to Adigun v. A.G. Oyo State (1987) 1 NWLR (Pt.53) 678. The appellants treated the issue under three different subheadings, namely: Closure of the case for the defence, Deprivation of the right to address and failure to afford the defendants the opportunity to secure the services of a new legal practitioner.
The arguments on the three sub-headings will be taken together. The appellants stated that on 6th March, 1995 their counsel wrote to the court stating that he will no longer participate in the proceedings. The appellants argued that their counsel having withdrawn from the proceedings, they were not afforded an adjournment nor called upon to conduct their defence personally. The appellants further stated that the respondents as plaintiffs urged the court to close the appellants case and allow the respondents address the court. The appellants argued that they were not afforded opportunity of responding to the plaintiff’s application but the court closed their case and called upon the plaintiffs to address the court immediately which they did.
Upon the conclusion of the address, the plaintiff’s counsel urged the court to give judgment in their favour. The appellants contended that they urged the court to allow them relay what transpired to their people and counsel but the court adjourned the matter sine die for judgment, which was eventually delivered on 28th March, 1995. The appellants contended that upon the closure of their case, if adjournment will not be obliged them, the court has a duty to call upon them to proceed with their defence. The appellants submitted that continuation of the proceedings without affording them the right to retain the services of another legal practitioner amounts to a breach of the rule of fair hearing. The appellants contended that the proceedings of 6th March, 1995 was in breach of their right to fair hearing. In support, reference was made to the following cases: Adigun v. A.G. Oyo State (1987) 1 NWLR (Pt.53) 678, Olumesan v. Ogundepo (1995) 2 NWLR (Pt.433) 628, Obodo v. Olomu (1987) 6 SCNJ 72, Obeta v. Okpe (1996) 9 NWLR (Pt.473) 401 at 438 – 439. In concluding, the appellants urged the court to nullify the proceedings of the lower court for breaching the appellants right to fair hearing.
The respondents stated that the rule of fair hearing is not a technical doctrine but that of substance and whether a party entitled to be heard, has been given an opportunity of being heard. In support, reference was made to S.B.N. Plc. v. M.P.I. Enterp. Ltd. (1997) 3 NWLR (Pt.492) 218. It was contended that miscarriage of justice operates both ways and a party cannot hold the other to ransom and expect justice to lean towards him. In support, reference was made to Muhammed v. Kpelai (2001) NWLR (Pt.710) 711. The respondents contended that the appellants were given ample opportunity and were not excluded from the proceedings, hence they cannot complain of denial of fair hearing. In support, reference was made to the following cases: Folbed In. Ltd. v. Alpha Merchant Bank Ltd. (1996) 10 NWLR (Pt.478) 344, Ekpeto v. Wanogho (2005) 2 NJSC 65, Muhammed v. Kano N. A. (1968) 1 All NLR 427. The respondents argued that hearing notices were served on the appellants to address the court.
The respondents posited that the business of trial courts is to adjudicate and avail all parties the principle of audi alteram patem, and that was done by the lower court. In support, reference was made to S & D Construction Co. Ltd v. Ayoko (2003) 5 NWLR (Pt.813) 278 at 300 – 301. It was further submitted that the principle of audi alteram patem is not a massive shield which the appellants can cover themselves with a view to circumventing the due process of law. In support, reference was made to Muhammed v. Kpelai (supra) at page 710. In concluding, the respondents, urged the court to dismiss the appeal in its entirety.
The proceedings of the 6th March, 1995 currently under attack by the appellants, is contained on pages 259 to 266 of the record of appeal. On page 259 it was recorded that “Counsel for the defendants wrote that he will no longer participate in this matter”. The defendants were asked as to what they intend to do. Their spokesman stated that their counsel wrote that he would no longer participate in the proceedings. The plaintiffs thereupon urged the court to close the defendant’s case and allow them to address the court. On this application of the plaintiffs, the defendants were not asked to respond, and neither were they afforded an adjournment to decide of what next to do. The court proceeded to deliver a short ruling, the concluding part of which reads thus on page263.
“In the circumstances narrated above and after ruling a long time that this court had jurisdiction subject to the view of the Court of Appeal. I shall proceed to further trial. The case of the defendants therefore is deemed closed in view of the opportunities given to them to proceed but have been misled by this counsel.
I would therefore take the address of the counsel for the plaintiff and later deliver judgment from the available evidence”.
The lower court as earlier stated refused the defendants an adjournment despite the letter written by their counsel withdrawing from the case. The proper thing for the court to have done on that date when appellants counsel withdrew, was to have adjourned the matter. This would have given the appellants several options, to either engage a new counsel, make amends and renew their relationship with the old counsel or appear by themselves and put through their defence. See Aluko v. Ajiboye (2012) All FWLR (Pt.653) 1953 at 1972 – 1973, per Uwa, JCA, Ndukauba v. Kolomo (2005) 4 NWLR (Pt.915) 411 at 430 – 431, S.B.N. Plc v. B.A.O. Motors (Nig) Ltd (2004) 7 NWLR (Pt.873) 579 at 600.
The lower court by a portion of the ruling reproduced above closed the case of the defendants. With due respect to the learned trial Judge, having closed the case of the defendants, fair hearing demands that they be given an opportunity to atleast address the court. That was also not done, as the court proceeded to take the address of counsel for the plaintiffs immediately, Hence the defendants were equally denied the opportunity to address the court, which also amounted to a breach of fair hearing. See Obodo v. Olomu (1987) 3 NWLR (Pt.59) 111, Akabogu v. Akabogu (2003) 9 NWLR (Pt.826) 445.
Upon the conclusion of address by the plaintiffs, the court asked the defendants what they proposed to do. In response, the defendants said they would like to relay all that transpired that day to their people and counsel. The court however adjourned the case sine die for judgment, which was eventually delivered on 28th March, 1995.
The procedure adopted by the lower court in the proceedings of 6th March, 1995 was surely in breach of the appellant’s right to fair hearing. On the application to close the defendant’s case/ the defendants were not given an opportunity to respond. Furthermore the defendants were denied the opportunity of either proceeding with their defence or to engage a legal practitioner. Finally they were also denied the opportunity of addressing the court, which as earlier said in this judgment is important and constitutes a breach of fair hearing. See Obodo v. Olomu (1987) 3 NWLR (Pt.59) 111, Mpama v. F.B.N. Plc (2013) 5 NWLR (Pt.1346) 176 at 198, Olaseni v. Olaseni (2010) 5 NWLR (Pt.1187) 225. See also University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143 at 148, Daniag v. Teachers Service Commission (1996) 5 NWLR (Pt.446) 97, Salu v. Egerbon (1994) 6 NWLR (Pt.348) 23, Ajanaku v. Williams (2009) 3 NWLR (Pt.1129) 617 at 632 – 633. The submission of the respondent to the effect that appellants were served hearing notice to address the court, is not correct.
The right to fair hearing is a fundamental constitutional right, guaranteed by the 1999 Constitution. The breach of right to fair hearing vitiates proceedings, rendering same null and void. A miscarriage of justice is inherent in a denial of a right to a fair hearing. Thus a party who establishes a denial of his right to a fair hearing under the Constitution is not required to prove that he suffered a miscarriage of justice, Mpama v. F.B.N. Plc (2013) 5 NWLR (Pt.1346) 175 at 204.
A hearing cannot be said to be fair, if any of the parties is refused a hearing or denied the opportunity to be heard, present his case or call witnesses. Fair hearing lies in the procedure followed in the determination of a case and not in the correctness of the decision. Where a court arrives at a correct decision in breach of the principle of fair hearing, an appellate court will not save the decision in favour of the breach of fair hearing. See Olufeagba v. Abdul-Raheem (2009) 40 NSCQR 684 at 724, Samba Petroleum Ltd. & Anor v. UBA (2010) 43 NSCQR 119 at 137, Saleh v. Monguno (2003) 1 NWLR (Pt.801) 221, Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt.622) 270, Adigun v. A.G. Oyo State (1987) 1 NWLR (Pt.53) 678, Obeta v. Okpe (1996) 9 NWLR (Pt.473) 401.
The case of Muhammed v. Kpelai (supra) cited by the respondent is not apposite to the proceedings of 6th March, 1995. The breach of the appellants right to fair hearing, occasioned a miscarriage of justice and vitiated the entire proceedings. Issue one succeeds and is resolved in favour of the appellants against the respondent.
Issue Six
A brief consideration will be made on issue number six. The complaints of the appellants under this issue are twofold, namely: That the lower court failed to give judgment in the consolidated cases on the claims in Suit No. HCT/74/90 and that the court without jurisdiction gave judgment for reliefs not claimed in Suit No. HCT/66/90 and against parties not made defendants in the suit. Consequent upon the foregoing, the appellants contended that the judgment of the lower court is a nullity. The respondents argued per contra, to the effect that the lower granted the declaration sought in Suit No. HCT/66/90 and injunction. The respondents contended that the injunction granted is a consequential order and within the jurisdiction of the court to grant to protect the right declared, even if not claimed. In support, reference was made to the following cases: Atolagbe v. Shorun (1985) 1 NWLR (Pt.2) 360 at 377, Odofin v. Agu (1992) 3 NWLR (Pt.229) 350 at 372, Akapo v, Hakeem-Habeeb (1992) 6 NWLR (Pt.247) 266 at 306. The respondents further contended that judgment was given in respect of the reliefs claimed in Suit No. HCT/74/90 on page 300 line 20 to the end of the page. The respondents urged the court to hold that the judgment and trial is not a nullity.
In resolving this issue, I deem it necessary to reproduce the relevant potion of the judgment relating to the reliefs granted on page 300 of the record:
“On the whole in HCT/66/90. I declare that the resolution passed in 1970 by the Otta District Chieftaincy Committee, as Iju Community is concerned is null, void, ultra vires as it is contrary to Iju customary system and the Ogun State Chiefs’ Law.
The defendants, their agents or successors in office are restrained from applying or continuing to apply the resolution in the performance under the Chief’s Law and/or in the management of all affairs relevant to chieftaincies or as may fall under their jurisdiction.
In respect of HCT/66/90. I declare that the 1st defendants (as represented by the Regency Council of Olota of Otta) have no right to appoint minor chiefs in Iju Otta.
I declare that the appointments of 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th and 10th defendants into various chieftaincies in Iju, Otta purportedly made by the 1st defendant on or about 19th June, 1990 are ultra, illegal and void.
I hereby order a perpetual injunction that the 1st defendant (as represented by the Regency Council of Olota of Otta), is restrained from usurping the function of the plaintiff as appointing authority of minor chiefs in Iju Otta.
The 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th and 10th defendants are hereby restrained from parading themselves as chiefs, pursuant to the aforesaid illegal appointments”.
The above quoted passage is a reproduction of the reliefs granted in the consolidated suits. It is glaringly clear that no reference whatsoever was made to Suit No. HCT/74/90. Indeed all the reliefs granted were specifically tied to case No. HCT/66/90, and parties are bound by the record of appeal. See Onwuanumkpe v. Onwuanumkpe (1993) 8 NWLR (Pt.310) 186, Sommer v. F.H.A. (1992) 1 NWLR (Pt.219) 548 at 557 – 558. Furthermore, in Suit No. HCT/66/90 there were only two defendants, namely the Regency Council of the Olota of Otta and Chief Lawani Kosebinu, the Akogun of Otta. The reliefs granted however covered about 10 defendants, thereby making orders on people who are not parties to Suit. It is also clear as earlier reproduced in this judgment, that the relief claimed in Suit No. HCT/66/90 was for a declaratory relief. However from page 300, reproduced above several injunctive reliefs against people who were not parties to the suit were granted.
It is trite law that the fundamental principle of consolidation of action is that although the action consolidated are tried and determined together in the same proceedings each remains a separate and distinct action and separate judgment given at the end of the common trial. The main objective of consolidating actions is to save time and costs. See Dugbo & Ors. v. Kporoaro & Ors. (1958) WRNLR 73, Lediju v. Odulaja (1943) 17 NLR 15, Diab Nasr v. Complete Homes Enterp. (Nig) Ltd (1977) 5 SC 1 at 11, Kalu v. Chima (2007) LPELR – 8309 (CA).
There was no judgment given in respect of the reliefs claimed in Suit No. HCT/74/90 on page 300. The court was also wrong in granting injunctive reliefs against about 10 defendants in Suit No. HCT/66/90 when there were only 2 defendants. See Onykwolume v. Udulue (1997) 7 NWLR (Pt.512) 277, Okpata v. Obo (1960) SCNLR 103 at 110. Finally there are plethora of authorities to the effect that a court is not known or equated to a charitable organisation or a father Christmas distributing largesse to all and sundry by granting reliefs not claimed for, as was done in HCT/66/90, See Shena Security Co. Ltd v. Afropak (Nig) Ltd (2008) 34 NSCQR (Pt.11) 1287, Etajata & Ors. v. Ologbo & Anor. (2007) 16 NWLR (Pt.1061) 554, Agbi v. Ogbeh (2006) 11 NWLR (Pt.990) 65, Isheno v, Julius Berger (Nig) Plc (2008) 6 NWLR (Pt.1084) 584. Consequent upon the foregoing, issue six also succeeds and is hereby resolved in favour of the appellants against the respondents.
Issues 2 – 5
The remaining issues namely issues 2, 3, 4 and 5, were challenging the jurisdiction of the court. The challenge to the jurisdiction was based on statute of limitation and ouster of court’s jurisdiction. On the limitation of action the appellants contended that the plaintiffs in the consolidated suits filed in 1990 were challenging a resolution passed by Otta Chieftaincy Committee on 8th May, 1970. The appellants contended that the cause of action arose in 1970 and the action being tortuous in nature, it ought to have been instituted within 6 years. In support, reference was made to Odubeko v. Fowler (1993) 6 NWLR (Pt.308) 637 at 645. The respondents contended that the action is not tortuous in nature but a breach of the native law and custom of Iju, by the appointment of the chiefs and the cause of action arose in 1990 when the 1970 resolution was applied to Iju, hence they instituted the action in 1990.
In order to determine this issue a brief consideration will be made as to what amounts to a cause of action, in order to determine when same accrued. Cause of action has been defined to mean fact or facts which establish or give right to a right of action. It is the factual situation which gives a person a right to judicial relief. See Egbe v. Adefarasin (1987) 1 SC 1 at 34, Oshoboja v. Amuda (1992) NWLR (Pt.250) 690, Adah v. NYSC (2004) 13 NWLR (Pt.891) 639, Sanda v. Kukawa Local Govt. (1991) 2 NWLR (Pt.174) 379, Peacegate Oil & Gas Ltd v. Hydrive (Nig.) Ltd (2012) 17 NWLR (Pt.1329) 391 at 403.
The complaint giving rise to the instant claim was when the resolution was applied to Iju as it affects the plaintiffs. The resolution was applied in 1990 and the suits instituted same year, hence not statute barred.
On the ouster of court’s jurisdiction, reliance was placed on Section 161 and 165 of the 1963 Constitution and Section 28 of the Chiefs Law of Ogun State. The contention of the appellants is that based on the aforementioned provisions of the 1963 Constitution and the Chiefs Law of Ogun State, the lower court lacked jurisdiction to determine a Chieftaincy matter that arose before October 1979. In support, reference was made to the following cases: Utih v. Onoyivwe (1991) 1 NWLR (Pt.66) 166 at 241, Mustapha v. Gov. of Lagos State (1987) 2 NWLR (Pt.58) 539.
The respondents contended that the claim in HCT/66/90 is an attack on the resolution of a Chieftaincy Committee and the cause of action arose in 1990 when the Olota of Otta appointed Awori men as Iju minor Chiefs. As for HCT/74/90, it was contended that the cause of action arose in 1990 as it was a challenge to the appointment of minor chiefs made in 1990, in that it did not comply with Native Law and Custom of Iju and Chiefs Law of Ogun State. It was argued that, as the cause of action accrued in 1990, the applicable law as at then was the 1979 Constitution and by Section 236 thereof, High Court has unlimited jurisdiction to try all cases. In support, reference was made to the following cases: Apampa v. State (1982) 6 SC 47 at 55 – 56, Ekechi v. Military Gov. Bendel State (1992) 3 NWLR (Pt.227) 39 at 52, Popopla v. Adeyemo (1992) 8 NWLR (Pt.257) 1, Utih v. Onoyinwe (1991) 1 NWLR (Pt.66) 166 at 201, Imad v. Salami (1998) 7 NWLR (Pt.557) 289 at 297, Oduntan v. Akibu (2000) 10 WRN 48 at 69, Olu of Warri v, Kperegbey (1994) 4 NWLR (Pt.339) 416 at 439, Osagie 11 v. Okafor (1998) NWLR (Pt.541) 205 at 212. The respondents contended that the issue be resolved in their favour.
The claim in Suit No. HCT/66/90 is an attack seeking declaratory relief against the application to Iju in 1990 of a Chieftaincy Committee Resolution, The claim in Suit No. HCT/74/90 is a challenge to the appointment of Awori men in 1990 as Iju minor Chiefs, The cause of action in both suits accrued in 1990. The operational Constitution as at 1990 was the 1979 Constitution and not the 1963 Constitution. By Section 236 of the 1979 Constitution, the High Court has an unlimited jurisdiction. By the same token any law like Section 28 of the Chiefs Law seeking to oust the jurisdiction of the court is void by virtue of Section 6, 236, 274(1) and 274(8) of the 1979 Constitution. The court therefore had the necessary jurisdiction to entertain the action. The aforementioned issues relating to jurisdiction therefore fail and are resolved in favour of the respondents against the appellants.
Consequent upon the resolution of issues one and six in favour of the appellants, the appeal succeeds and is hereby allowed. The judgment of the lower court delivered on 28th March, 1995 is hereby set aside. An order is hereby made remitting the case to the Hon. Chief Judge Ogun State for a fresh trial before a different Judge. There will be no order as to costs.
CHIDI NWAOMA UWA, J.C.A.: I was privileged to have read before now, the judgment just delivered by my learned brother ADAMU JAURO, JCA. I agree with his reasoning and conclusion arrived at in allowing the appeal.
By way of emphasis, I will touch on the appellant’s first issue on fair hearing or lack of it. The principle of fair hearing is fundamental to all court procedure and proceedings; the absence of it vitiates the entire proceedings no matter how well conducted. The principle of fair hearing is not only a common law right but is also a right guaranteed under Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria or S.33(1) of the 1979 Constitution, whatever the case may be, operational at the time of the decision leading to the present appeal.
Fair hearing under the above Section of the Constitution means nothing less than a trial conducted according to all the rules, to ensure that justice is done to both parties in compliance with the old and known principles of natural justice, these are, audi alteram partem and nemo judex in causa sua. In other words, a party should not be denied of the opportunity of fully presenting his case and full opportunity to present his defence.
In the present case, the counsel to the appellants wrote a letter to the trial court withdrawing his appearance from the matter which was granted by the trial court. The respondents’ counsel urged the court to close the case of the defendants and allow the plaintiffs address the court. The defendants were not given an opportunity to respond to the application and were not granted an adjournment to enable the appellant decide on what to do with their matter in absence of their counsel. The learned trial judge closed the case of the defendants, took the address of the plaintiffs’ counsel and adjourned for judgment.
The appellants ought to have been given the opportunity of either engaging another counsel or appearing by themselves to continue their defence or for the appellants to make amends with their counsel, that is make up for whatever reason he withdrew his appearance, vide his letter, if they could. The trial court’s continuation, and conclusion to judgment without giving the appellants equal opportunity with the Respondents of putting their cases forward was arbitrary and the judgment a nullity. In this respect See, NDUKAUBA VS. KALOMO (2005) ALL FWLR (PT. 248) 1602, (2005) 4 NWLR (PT. 915) 411 at 430-431; ATANO VS. BENDEL STATE (1988) 2 NWLR 75, P.32; SALU VS. EGEIBON (1994) 6 NWLR (348) 23: BAMGBOYE VS. UNIVERSITY OF ILORIN (1999) 10 NWLR (PT. 622) 290; and OLANIYI VS. ADEYEMI (1990) 4 NWLR (PT. 147) 749.
The test of fair hearing is whether a reasonable man observing the trial court, from his observation would come to a conclusion that the trial was a fair one and that justice has been done in the case, any contrary conclusion means absence of fair hearing or trial. In the present case one could feel the air of stampede, where the appellants’ case was closed for them, address of plaintiffs taken and adjournment for judgment. It is immaterial that the decision would have been the same had the defendants been fully heard before judgment. The trial must be balanced. See, ONIGBO VS. UNA (1997) 8 NWLR (PT.516) 255; MOHAMMED VS. KANO NATIVE AUTHORITY (1968) 1 ALL NLR 424; SHEKETE VS. NIGERIAN AIR FORCE (2007) 14 NWLR (1053) 159 and a recent decision of this court in ALUKO VS. AJIBOYE (2012) ALL FWLR (PT.653) 1953 at 1972 – 1973, Paras. D-B; 1974, paras C – E.
Where a party is not availed of a right to be heard at every stage of the proceedings, the hearing cannot be said to be fair. See, OLUMESAN VS. OGUNDEPO (1999) 2 NWLR (PT.433) 628; AGBAHAMOVO VS. EDUYEGBA (1999) 3 NWLR (PT.549) 170 and EKUMA VS. SYLVA EAGLE SHIPPING AGENCIES (NIG.) LIMITED (1987) 4 NWLR (PT. 65) 472.
The appellants’ right to fair hearing was breached. The trial cannot be said to have been fair, same is a nullity and is hereby set aside. The appropriate order has been made by my learned brother, that of trial de novo by another judge other than the trial judge, I order same.
On further emphasis, in respect of the appellants’ second issue which also touches on the manner in which the trial court shut out the appellants as defendants in the course of the proceedings after being notified vide a letter from their counsel withdrawing from the matter.
When an appeal has been lodged against a decision of a court, the said court must have in mind that its decision could be reversed on appeal and therefore ought not to create a situation of hopelessness by continuing with the hearing of the matter as happened in this case in disregard of the pending appeal. The end result would be that, the appeal would be rendered nugatory. See, the cases of DEDUWA VS. OKORODUDU (1974) 1 ALL NLR (PT.1) 272 AND EMMANUEL VS. WAPCIPCO LTD, (2001) 18 WRN 75. Therefore, when a trial court is made aware of the pendency of an appeal against its decision in course of the trial, the trial court ought to await the result of the appeal.
Also, where there is an application for stay of proceedings which is pending, the best and reasonable thing to do is for the trial court as in the present case to have adjourned the matter pending before it pending the determination of the application. See, AMALGAMATED TRUSTEES LTD VS. N.I.M.B. (2001) 1 NWLR (PT. 694) 237, MOHAMMED VS. OLAWUNMI (NO. 2) (1993) 4 NWLR (PT. 287) 254, N.A.B. LTD VS. CANEX LTD (1999) 6 NWLR (PT.608) 648 and OLASENI VS. OLASENI (2010) PT. 1187) 5 NWLR P.225.
For the fuller reasons of my learned brother in the leading judgment, I also allow the appeal and order that this case be and is hereby remitted to the Chief Judge Ogun State for a trial de Novo before a different judge other than Bakre, J.
I abide by the order awarding no costs.
OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother Adamu Jauro JCA. I agree with his reasoning and the conclusions reached. His Lordship has ably covered the main issues in the appeal namely, the issue of fair hearing, the need to distinguish the constituent claims in a consolidated action and the issue of statute of limitation.
I wish only to add a comment or two on the issue of fair hearing. Fair hearing defines proper dispensation of justice. As DNA (Deoxyribonucleic acid) is a major essential for all known forms of life, so is fair hearing essential for the integrity of any decision of a court of law. As stated by the supreme court in State vs. Onagoruwa (1992) 2 NWLR part 221 page 33 at p.56, it is an elementary and fundamental principle of our administration of justice that no decision can be regarded as valid unless the trial Judge or court has heard both sides in the conflict. What is the test for knowing that there has been a fair hearing? It is the impression of a reasonable person who was present at the trial whether from his observation, justice has been done in the case. See Okafor vs. A.G. Anambra State (1991) 6 NWLR part 200 page 659 part 1346
p.176 at 197.
In this case, the trial Judge after learning from the spokesman of the defendants that their counsel was no longer going to represent them in the case, went ahead to deem the defendants’ case closed. He then proceeded to state in clear terms that he would take the address of the plaintiffs’ counsel and later deliver judgment. By so deciding, it is clear to me that a reasonable person who is in court watching proceedings will leave the court with the impression that the trial Judge had slammed the door against the possibility of the defendants getting another lawyer or defending the action themselves. Such a reasonable person in my view, will leave the court with the additional feeling that the defendants had lost the chance of addressing the court. Certainly, the impression of the reasonable person will be that the defendants have had a raw deal and have not been given a fair hearing.
Once it is established that the decision of the trial court has been vitiated for breaching the appellants right to fair hearing, the whole decision of the lower court will collapse. See the case of Ovunwo vs. Woko (2011) 17 NWLR part 1277 p.522 at 548 – 549 per Chukuma-Eneh JSC; University of Calabar & Anor. vs. Dr. P.G. Akintunde (2012) 38 WRN page 107 at 136.
I think that on the issue of fair hearing alone, this appeal should succeed. Let me reiterate that I agree with the fuller judgment of my learned brother Adamu Jauro JCA. I also agree with the orders contained in the lead Judgment.
Appearances
Mr. S.O. Ajayi with Mrs. Tosin Ogwazzy, Mr. J.O. Abdulsalam, Adebayo Afees Esq., and Olalekan Akanbi Esq.,For Appellant
AND
Mr. Adebayo Oyagbola with O. M. Giwah Esq.For Respondent
