TOLUWALEKE MEGBA v. EBUN-OLU ADEGBORUWA, ESQ & ANOR
(2018)LCN/12307(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 18th day of December, 2018
CA/L/644/2014
RATIO
FUNDAMENTAL RIGHT: PRINCIPLE OF FAIR HEARING
“As NIKI TOBI, JSC (as he then was) famously said in ADEBAYO v A.G., OGUN STATE [2008] 7 NWLR (PT 1085) 201, the fair hearing principle is a formidable and fundamental constitutional provision in the Constitution available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. The substantive suit is still pending at the lower Court and the rights of the parties have not in any way been determined by the lower Court. It is my considered view that having regard to its inherent powers, the lower Court exercised its discretion judiciously and judicially, this Court cannot interfere even if it would have exercised its discretion differently in the same situation. SeeDUWIN PHARMACEUTICAL & CHEMICAL CO. LTD v BENEKS PHARMACEUTICAL & COSMETICS LTD & ORS (2008) LPELR 974 (SC); NNPC v CLIFCO NIG. LTD (2011) LPELR 2022 (SC); IKENTA BEST (NIG) LTD v AG., RIVERS STATE (2008) LPELR 1476 (SC).” PER PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
INTERPRETATION: STATUS QUO
“While adopting the definition of status quo as contained in the Black’s Law Dictionary, 5th Edition, the Apex Court, in FATB & ANOR v A. BASIL O. EZEGBU & ORS (1993) NWLR (PT 297) 1, (1993) LPELR 30 – 31, paras G & B noted: ‘In Black’s Law Dictionary, the phrase status quo ante is defined thus on page 1264 thus: The existing state of things at any given date quo ante bellum, the state of things before the war. ‘Status quo’ to be preserved by a preliminary injunction is the last actual, peaceable, uncontested status which preceded their pending controversy.'” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
JURISDICTION: WHERE THE ISSUE OF JURISDICTION IS RAISED
“Indeed, I concede the elementary position of law stated by the Appellant’s counsel that it is ideal in any judicial determination where jurisdiction is raised as an issue, to first determine that issue before proceeding further to consider the matter on the merit. SeeA-G., RIVERS STATE v A-G., AKWA IBOM STATE & ANOR (2011) LPELR 633 (SC); ADEKOYE & ORS v NIGERIAN SECURITY PRINTING AND MINTING CO. LTD & ORS (2009) LPELR 106 (SC); OLUTOLA v UNILORIN (2004) LPELR 2632 (SC); ADEGBOLA & ORS v. IDOWU & ORS (2017) LPELR 42105 (SC); NNPC & ANOR v ORHIOWASELE & ORS (2013) LPELR 24710 (SC).” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
JUSTICES
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
TOLUWALEKE MEGBA
(Trading under the name & style of Megba Toluwaleke & Co.) Appellant(s)
AND
1. EBUN-OLU ADEGBORUWA, ESQ.
(Practicing under the name & style of Ebun-Olu Adegboruwa & Co.)
2. UNKNOWN PERSONS Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment):
We have before us an appeal filed by the present Appellant, who is dissatisfied against the decision of KASALI, J., (Mrs.) of the Lagos State High Court, sitting at Tafawa Balewa Square, Lagos Island, wherein an order that ‘status quo’ be maintained by both parties in respect of the matter before the Court in Suit No. LD/4032/2014.
The 1st Respondent had by a Writ of Summons and Statement of Claim dated 21st March, 2014, claimed against the Appellant and the 2nd Respondent inter alia a declaration that the Claimant is entitled to statutory right of occupancy over all that piece and parcel of land situate and being at Itedo, Off Ebun-Olu Adgboruwa Lane, Itedo Lekki, Lagos and more particularly described in Survey Plan No. ASC/931/LA/99 dated 7th December, 1999 drawn by F.A. Ogunbadejo, Registered Surveyor.
According to the Appellant, after parties have filed and exchanged their respective pleadings, and particularly on 9th May, 2014, when the matter came up before the Court for the first, and after identifying the processes filed and without hearing any other submissions from counsel to the parties, the trial judge made an order suo motu “that status quo be maintained pending the hearing and determination of the matter” and adjourned the matter till the 7th day of July, 2014.
Peeved with the foregoing, the Appellant approached this Court vide a Notice of Appeal dated 12th May, 2014, in line with the practice in this Court, parties filed and exchanged their respective briefs of argument. The Appellant’s Brief of Argument as well as the Reply Brief settled by Declan Kemdirim, Esq., respectively dated 14th July, 2014 and 21st November, 2014 was filed 21st August, 2014 and 21st November, 2014. On the other side, 1st Respondent’s brief of argument dated and filed 28th October, 2014 was settled by David Fadile, Esq.
Before I will consider the issues set down for determination by both parties, let me quickly deal with the 1st Respondent’s Preliminary Objection, whereby the 1st Respondent is seeking an order striking out and/or dismissing the appeal for lack of competence. The grounds upon which the objection was brought are as follows:
a. The ruling of the learned trial Court appealed against is an interlocutory decision hence, the leave of the Court but no leave was sought.
b. The Appeal is on ground of facts which requires leave of Court but no leave was sought by the appellant.
c. The Appeal is on the exercise of the discretion of the learned trial Court. No leave was sought and granted.
Arguing the objection in his brief of argument, the 1st Respondent’s counsel referred to Section 241 and 242 of the 1999 Constitution (as amended) to argue that where a decision does not come under the categories listed under Section 241, it is automatically covered by Section 242, which means that such decision requires leave of Court. In this case, the decision is an interlocutory one emanating from the exercise of discretion by the trial Court regarding the preservative order made on 9th May, 2014. Counsel relied on GARUBA v OMOKHODION [2011] 14 NWLR (PT 1269) SC 145; NAOC LTD v OGINNI [2011] 2 NWLR (PT 1230) CA 131; FANI KAYODE v FRN [2011] 4 NWLR (PT 1237) CA 340 to argue that the appeal is incompetent and ought to be struck out with substantial costs.
The response of the Appellant’s counsel contained in the Reply Brief is essentially that the case of the Appellant falls under Section 241(1)(d) of the 1999 Constitution (as amended) which allows appeal as of right against decisions in any proceeding question as to whether any of the provisions of Chapter IV of the Constitution has been, is being or likely to be contravened in relation to any person. It is the submission of counsel that by ground two of the notice of appeal, the Appellant do not need the leave of the Court since that ground of appeal bothered on fair hearing.
Indeed, having regard to ground 2 of the Appellant’s Notice of Appeal found at pages 250 to 252 of the record of appeal, I am persuaded by the Appellant’s argument that no need of leave to appeal is necessary where the question before the Court relates to whether any of the provisions bothering on fundamental rights contained in Chapter IV of the 1999 Constitution, has been or is likely to be breached. In the present case, the Appellant’s ground 2 contains particulars complaining that the Appellant’s right to fair hearing was breached by the trial judge when he proceeded suo motu, without hearing the parties, to order that status quo should be maintained by the parties.
However, it seems that the Appellant’s counsel has no response to the 1st Respondent’s argument particularly in relation to Ground 1 of the Notice of Appeal, which undoubtedly questions the exercise of the discretion of the lower Court and being an interlocutory decision, the Appellant requires leave of this Court to file the said Notice of Appeal and canvass argument thereon.
Be that as it may, I am inclined to consider the Appeal on the merit having regard to the issues formulated by the parties and the submissions made by the parties. For purpose of emphasis, the issues formulated by the Appellant are:
1. Whether the Court can make an order when it has before it a challenge to its jurisdiction without first determining whether it has jurisdiction at all to even entertain the suit before it?
2. Whether the Appellant’s right to fair hearing was not breached in making the said order, having regards to the circumstances of this case, to wit, the Appellant was not heard before the Order was made?
On the part of the 1st Respondent, two similar issues were formulated as follows:
1. Whether a trial Court is empowered to preserve the subject matter of a suit pending the determination of the issue of jurisdiction raised before it?
2. Whether the Appellant’s right to fair hearing was breached?
I have had the benefit of reading through the arguments canvassed by the counsel to the respective parties, and it is my firm view that a sole issue is apt for the determination of this appeal, to wit, whether the decision of the learned trial judge was proper in the circumstances? I shall however consider the submissions made by counsel under the two issues formulated by the parties.
On the first issue, Appellant’s counsel submitted that jurisdiction is the threshold of every proceedings and must be determined first by the Court, relying on OPARA V AMADI [2013] ALL FWLR (PT 709) 1019, paras B – C; that the trial Court ought to have determined its jurisdiction first before making any orders as it did on 9th May, 2014. He further cited UWAZURIKE v NWACHUKWU [2013] ALL FWLR (PT 680) 1205 at 1222, paras G – H.
Counsel concluded that the trial Court ought to have determined its jurisdiction first before proceeding to make any orders and/or if for any reason it could not hear the preliminary objection on that 9th May, 2014, it should have given a very short adjournment to hear and determine same since the Court also had before it a purported affidavit of urgency.
On the second issue, counsel submits that the Appellant’s right to fair hearing was breached. He referred to the proceedings of the Court on 9th May, 2014 at pages 246 to 247 of the record of appeal. He noted that the matter was coming up for the first time before the Court and counsel had merely identified the process filed and the next thing the judge did was to make the order without asking counsel to address him.
Counsel said that the Appellant’s grouse is not that the Court cannot make orders suo motu but in doing so, the trial Court said; ‘in view of the affidavit of urgency filed in the matter’ which implies that the trial Court only considered the affidavit of urgency filed by the 1st Respondent herein, but never gave the Appellant the opportunity of reacting or addressing the Court on the issues whether indeed there is an urgency. Referring to Section 36(1) of the 1999 Constitution; BAMISILE v NJC [2013] ALL FWLR (PT 678) 911; EKPENETU v OFEGOBI [2013] ALL FWLR (PT 680) 1333 to 1359, paras H – A; ATAGBOR v OKPO [2013] ALL FWLR (PT 680) 1362 at 1382, paras F – H, counsel submits that no reasonable man will believe that justice was done when the order was made in the present case, hence breach of fair hearing. He urged that this issue be resolved in the Appellant’s favour.
On the first issue, 1st Respondent’s counsel relied on Section 6(1) of 1999 Constitution (as amended); Order 38 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 2012 to submit that the Courts has inherent discretionary powers to preserve the subject matter of an action brought before it. He referred to OLOJEDE v OLALEYE [2010] 4 NWLR (PT 1183) CA on nature of preservative order. He also referred to FATB v EZEGBU [1992] 9 NWLR (PT 264).
On the Appellant’s contention that the trial Court ought to have determined its jurisdiction before proceeding to make its preservative order considering the preliminary objection filed by the Appellant, counsel referred to NWANKWO v YAR’ADUA [2010] 12 NWLR (PT 1209) 518 (SC) to submit that the fact that a party has filed a preliminary objection does not mean that the Court will go into hiding but that the Court still has the power to decide the said objection, and while deciding the question of jurisdiction, the Court has the power to preserve the subject matter of the suit.
On the second issue, counsel referred to CHUKWUMA v FRN [2011] 12 NWLR (PT 1264) SC 391 on the concept of fair hearing which he said encompasses the two pillars of natural justice ? audi alteram partem and nemo judex in causa sua; also relied on ODIGWE v JSC, DELTA STATE [2011] 10 NWLR (PT 1255) CA. It is the submission of counsel that nobody complained before the trial Court on the issue of adjournment and the said issue does not arise from the proceedings of the lower Court. He also noted that adjournment is at the discretion of the Court. It is the further contention of counsel citing NIGERIA NAVY v GARRICK [2006] 4 NWLR (PT 969) CA 69 that the cry of the Appellant on this ground is belated and unfounded.
RESOLUTION
I believe the starting point is to reproduce the proceedings of the lower Court of 9th May, 2014 which is the basis of the present appeal. The proceedings can be found at pages 248 to 248A of the record of appeal. The contents are as follows:
Parties: 1st defendant present.
Appearance: O. D. Fadile for claimant.
D.C. Kemdirin for 1st Defendant
2nd Defendant counsel absent.
Fadile: We received 1st defendant statement of defence yesterday having been served with out processes on the 27th March, 2014. We have a motion dated 21st March 2014.
Kemdirin: I confirm service of the interlocutory injunction. We have filed our defence and responded to the said motion on notice, we filed a notice of preliminary objection challenging the competency of the suit vis-a-vis the jurisdiction of the Court. All the processes served on the claimant – preliminary objection dated 2nd May, 2014.
Court: In view of the affidavit of urgency filed in this matter this Court is suo moto directing all parties in this suit to maintain status quo as at today pending the determination of this matter.
Pleadings herein have not been concluded; therefore, the notice of preliminary objection which is on the jurisdiction of this Court to entertain this matter will be dealt with first before any other matter.
In the result case adjourned to 7th July, 2014 for adoption of written addresses in respect of the notice of preliminary objection dated 2nd May, 2014.
Looking at the above proceedings, can the complaint of the Appellant herein under the extant issue be sustained in the light of the above reproduced proceedings of the lower Court? Indeed, I concede the elementary position of law stated by the Appellant’s counsel that it is ideal in any judicial determination where jurisdiction is raised as an issue, to first determine that issue before proceeding further to consider the matter on the merit. SeeA-G., RIVERS STATE v A-G., AKWA IBOM STATE & ANOR (2011) LPELR 633 (SC); ADEKOYE & ORS v NIGERIAN SECURITY PRINTING AND MINTING CO. LTD & ORS (2009) LPELR 106 (SC); OLUTOLA v UNILORIN (2004) LPELR ? 2632 (SC); ADEGBOLA & ORS v. IDOWU & ORS (2017) LPELR 42105 (SC); NNPC & ANOR v ORHIOWASELE & ORS (2013) LPELR 24710 (SC).
I have given a most careful consideration to the proceedings of 9th May, 2014, reproduced supra and I find it difficult in the first place to accept that the lower Court had done anything contrary to the position of the law mandating that issue of jurisdiction must be first determined by the Court. A careful perusal of the excerpt above shows that the learned trial judge was not oblivious of this settled position of the law. As a matter of fact, she emphatically noted that the ‘notice of preliminary objection which is on the jurisdiction of this Court to entertain this matter will be dealt with first before any other matter’ before adjourning proceedings ’till to 7th July, 2014 for adoption of written addresses in respect of the notice of preliminary objection dated 2nd May, 2014.’
What more can the Appellant ask for? It is certainly not the case of the Appellant’s counsel that the learned judge determined the suit on the merit without considering the objection raised by the Appellant. Suffice to say that arguments have not even been taken in respect of the preliminary objection.
It seems clear to me that, the learned trial judge, while noting that that issue relating to jurisdiction must first be dealt with, and adjourned proceedings till 7th July, 2014, for the adoption of written address in respect of the notice of preliminary objection, deemed it necessary in the circumstance that the parties in the suit should maintain status quo as the day the order was made. This is no doubt an exercise of the inherent power of the Court. Needless to say, that the inherent power of a Court is a necessary adjunct of the adjudicatory jurisdiction of the Court and is exercisable where deemed necessary for effective dispensation of justice and determination of rights of parties before. See EZEAFULUKWE v OBATOYINBO (2007) LPELR 8819 (CA). While adopting the definition of status quo as contained in the Black’s Law Dictionary, 5th Edition, the Apex Court, in FATB & ANOR v A. BASIL O. EZEGBU & ORS (1993) NWLR (PT 297) 1, (1993) LPELR 30 – 31, paras G & B noted:
‘In Black’s Law Dictionary, the phrase status quo ante is defined thus on page 1264 thus: The existing state of things at any given date quo ante bellum, the state of things before the war. ‘Status quo’ to be preserved by a preliminary injunction is the last actual, peaceable, uncontested status which preceded their pending controversy.’
See also EDGEWATER CONSTRUCTION CO INC v PERCY WILSON MORTGAGE & FINANCE COOP.2. 111 Dec. 864.35 of N.E 2nd 13cf 1314; AKAPO v HAKEEM-HABEEB [1992] 6 NWLR (PT 247) 266 at 303, paras F – G. For the avoidance of doubt, the learned trial judge’s direction and/or order affects not just the Appellant herein but also the 1st Respondent in the instant case. This, in my dispassionate view, does not amount to deciding the suit on merit and/or failing to first determine the issue of jurisdiction raised by the Appellant. See also GLOBE FISHING INDUSTRIES LTD & ORS v COKER (1990) NWLR (PART 162) 265. Therefore, I do not find anything wrong or improper with the order made by the lower Court. The argument of Appellant?s counsel that the learned trial judge acted suo motu is clearly misconceived.
As a master of his Court, it is apparent that the learned judge exercised his discretion correctly having regard to the circumstances. What the law frowns at is the determination of the suit on merit without first determining the issue of jurisdiction properly raised by the party before it. I cannot pretend that I fully appreciate the contention of the Appellant’s counsel implying that once a preliminary objection is filed before a Court, the Court is automatically handicapped to discharge its obligation as in the instant case to preserve the res, until and unless it gives its decision on the objection. I am unable to introduce such limitation to the inherent power of the Court. The whole purpose of the order made by the learned trial judge is to preserve the res, the subject matter of the suit before the Court from being damaged or wasted. See AKIBU & ORS v ODUNTAN & ORS [1991] 2 NWLR (PT 171) 1 SC; OYEYEMI & ORS v IREWOLE LOCAL GOVT [1993] 1 NWLR (PT 270) 462 at 476, para F.
Meanwhile, it is also the Appellant’s contention that the trial judge ought to have given a very short adjournment to hear and determine the objection raised before it. This contention is in my respectful view, unfounded. The grant or refusal of an adjournment is entirely at the discretion of the trial Court. See OGUNSANYA v STATE (2011) LPELR ? 2349 (SC); SOLANKE v AJIBOLA (1968) LPELR 25527 (SC); NWADIOGBU & ORS v ANAMBRA/IMO RIVER BASIN DEVELOPMENT AUHORITY & ANOR (2010) LPELR 2089 (SC).
In the same vein, I am with respect, not prepared to accept the contention of the Appellant’s counsel that the Appellant’s right to fair hearing was breached when the learned trial judge, without taking arguments from counsel for the respective parties, ordered that status quo should be maintained, as well founded. I have earlier stated that the order made by the trial judge was made in the exercise of her inherent powers. The meaning and nature of the inherent powers of Courts of law was aptly captured by the Apex Court, per OPUTA, JSC (of blessed memory) in ADIGUN & ORS v A-G., OYO STATE & ORS (NO. 2) (1987) LPELR 40648 (SC) as follows:
“In view of the above, it becomes an issue of vital importance to probe the meaning and nature of the inherent powers of Courts of law. Simply put, the inherent power of any Court is that power which is itself essential to the very existence of the Court as an institution charged with the dispensation of justice, such as the power to punish for contempt, the power to grant an adjournment in the interest of justice etc. An inherent power has to be inherent in the sense that it forms an essential and intrinsic element in the whole process of adjudication. It is innate in a Court, and is not a subject of specific grant by the Constitution or by legislation. That is why inherent powers of the Court cannot be taken away or abridged by legislation for he who gave, he can only take away”
This explains Section 6(6)(a) of the 1979 Constitution which merely recognised and stated the obvious that the inherent powers of a Court of law exist, notwithstanding anything to the contrary in this Constitution for such powers were not granted by the Constitution. As soon as any Court is established, all its inherent powers adhere and attach to it. Inherent powers of the Court are therefore those powers that are reasonably necessary for the administration of justice in the Court.
See also TUBONEMI & ORS v DIKIBO & ORS (2005) LPELR 7519 (CA); EDE & ANOR v MBA & ORS (2011) LPELR 8234. I think I ought to mention that the preservative order made by the Court, notwithstanding the fact that the judge referred to the affidavit of urgency filed by the 1st Respondent, was not made consequent upon the consideration and determination of the merit of any application before the Court.
As NIKI TOBI, JSC (as he then was) famously said in ADEBAYO v A.G., OGUN STATE [2008] 7 NWLR (PT 1085) 201, the fair hearing principle is a formidable and fundamental constitutional provision in the Constitution available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. The substantive suit is still pending at the lower Court and the rights of the parties have not in any way been determined by the lower Court. It is my considered view that having regard to its inherent powers, the lower Court exercised its discretion judiciously and judicially, this Court cannot interfere even if it would have exercised its discretion differently in the same situation. SeeDUWIN PHARMACEUTICAL & CHEMICAL CO. LTD v BENEKS PHARMACEUTICAL & COSMETICS LTD & ORS (2008) LPELR 974 (SC); NNPC v CLIFCO NIG. LTD (2011) LPELR 2022 (SC); IKENTA BEST (NIG) LTD v AG., RIVERS STATE (2008) LPELR 1476 (SC).
There is one final point I wish to make in connection with the present appeal, although as an aside, and it is the fact that I entertain no doubt that the present appeal by the Appellant is needless. It is an unnecessary waste of judicial time by the Appellant. Counsel needs to be admonished that it is not every order(s) made by a Court that should be appealed against. In the instant case, both parties are laying claim to a property, the subject matter of the suit and due to this adverse claim, the Court adopted a utilitarian approach by ordering parties to maintain status quo so that the res is preserved. The Appellant seemingly do not agree with this approach and I am tempted that there is a likelihood that he had premeditated intention to tamper with the disputed property, even though there is a matter relating thereto before the Court. Perhaps, if that was not the intention of the Appellant, to resort to self-help, he would not have brought the present appeal challenging a proper exercise of the power of the Court directing that the parties should maintain status quo. Let me remind the Appellant that self-help is unlawful and will not be condoned by any Courts of law. REGISTERED TRUSTEES, APOSTOLIC CHURCH v OLOWOLENI [1990] 4 NWLR (PT 158) 514.
In the end, it seems to be clear that no miscarriage of justice was occasioned as a result of the order made by the trial Court. I therefore resolve the issues in the appeal against the Appellant.
The result is that the Appellant’s appeal lacks merit and is hereby dismissed in its entirety. Parties are directed to abide by the order made by KASALI, J., (Mrs.) on 9th May, 2014. I award costs of N150,000.00 against the Appellant.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I read in the draft the leading judgment of my learned brother, Abimbola Osarugue Obaseki-Adejumo, JCA, which has just been delivered.
Having also read the Records of Appeal and the briefs of argument filed and exchanged by the parties, I am allegiant to the reasoning and indubitable conclusion in the leading judgment that the appeal is devoid of merit. Accordingly, I also dismiss the appeal and abide by the order as to costs made in the leading judgment.
TOBI EBIOWEI, J.C.A.: I agree.
Appearances:
Appellant not representedFor Appellant(s)
K. Hizama for 1st RespondentFor Respondent(s)
