VALID COVER SECURITY (NIG) LTD v. FEDERAL POLYTECHNIC MUBI
(2021)LCN/15866(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Wednesday, June 30, 2021
CA/YL/14/2018
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Between
VALID COVER SECURITY (NIG) LIMITED APPELANT(S)
And
FEDERAL POLYTECHNIC MUBI RESPONDENT(S)
RATIO
THE POSITION OF LAW ON NON-SUIT
A non-suit as held by the Supreme Court in Odi v. Iyala (2004) 8 NWLR (Pt. 875) page D-G. per Tobi JSC:
“Is a termination of an action which did not adjudicate all relevant issues on the merit, as where a Plaintiff is unable to prove his whole case and it will be unjust to dismiss such case in its entirety or where there is a failure by the trial Judge to make proper and specific findings and an appellate Court can neither do same on the printed evidence, a rehearing or non-suit depending on the circumstances may be ordered”
See Yesufu v. African Continental Bank Ltd (1980) LPELR 3521(SC). PER TUKUR, J.C.A.
WHETHER OR NOT THE COURT HAS THE COMPETENCE TO RAISE ISSUES SUO MOTU
The law is indeed settled on a long line of authorities that while it is within the competence of a Court to raise a point suo motu for the purpose of serving the ends of justice. However, it is also incumbent on the Court to invite parties, particularly the party that may be adversely affected on account of the point raise suo motu to address it on such a point before deciding on the point. See Egbuchu v. Continental Merchant Bank Plc. (2016) 8 NWLR (Pt. 1513) 192 at 208–192 at 208-209 where the Supreme Court held:
“Now the law is that a Court is not entitled to raise an issue suo motu and decide on it without affording the parties an opportunity to be heard. This is because, in doing so, the Court is seen to leave its exalted position as impartial arbiter and descend into the arena of conflict”
See also Oyekanmi v. NEPA (2000) LPELR 2873 (SC); Araka v. Ejeagwu (2000) LPELR–533 (SC); Dalek (Nig.) Ltd v. Ompadec (2007) LPELR–916 (SC).
In all the authorities cited above, the golden thread that runs through them was that where a Court raises a matter suo motu, the parties or their counsel must be given the opportunity to be heard on such an issue and that failure by the Court to hear the parties will amount to a denial of fair hearing.
In the instant case, it is not disputed that neither the parties nor their counsel in the lower Court were given the opportunity to address the Court before the decision to non-suit the case of the Appellant was taken by the learned trial Judge. The failure to afford the parties the opportunity to address it on the point was a clear breach of the Appellant’s right to fair hearing.
In the case of Odedo v. Oguebego (2015) 13 NWLR (Pt. 1476) 229 at 393 the Supreme Court held thus:
“It is trite that once a party’s right to fair hearing as guaranteed by Section 36(1) of the 1999 Constitution has been breached, the decision reached, no matter how well considered, would be declared a nullity and bound to be set aside”
See Eye v. F.R.N. (2018) LPELR 43599 (SC); Ndukauba v. Kolomo & Anor (2005) LPELR-1976 (SC); News-watch Communications Ltd v. Atta (2006) LPELR–1986 SC; Omidiran v. Patricia (2010) LPELR 9160 CA. PER TUKUR, J.C.A.
JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment): The appeal seeks to interrogate the decision of the High Court of Adamawa State delivered on 26th October, 2015 in Suit No. ADSYM/22/2013 wherein the learned trial Judge non-suit the case of the Appellant.
Dissatisfied with the order, the Appellant appealed to this Court vide a Notice of Appeal filed on 22nd November, 2020, and deemed properly filed on 20th January, 2021 containing four grounds of appeal.
The grounds of appeal shone of their particulars are set out hereunder:
GROUND 1
The learned trial High Court Judge erred in law when he non-suited the Appellant without inviting any of the parties to address the Court on the propriety or otherwise of the non-suit.
GROUND 2
The judgment of the lower Court was perverse when it held that the documentary evidence tendered by the Appellant did not prove the case of the Appellant at the trial Court.
GROUND 3
The learned trial Court Judge erred in law when he did not properly evaluate the evidence before it.
GROUND 4
Learned trial Court Judge erred in law and denied the Appellant fair hearing when he delivered judgment without giving the parties a Hearing Notice to that effect.
The Appellant seeks the following reliefs:
i. To allow the appeal and set aside the judgment of the High Court of Justice of Adamawa State dated 26/10/2015 presided over by Hon. Justice Nathan Musa.
ii. Invoke its powers under Section 15 of the Court of Appeal Act to hear the suit on the materials before the Court and grant the reliefs sought by the Plaintiff.
ii. In the alternative to (ii) above, remit the case back to the High Court of Justice Adamawa State to try before another Judge of the Court.
The facts of the case as presented in the Appellant’s brief of argument filed on 27th November, 2020, and deemed properly filed on 20th January, 2021, is that the suit was essentially for breach of contract entered between the parties based on a memorandum of understanding executed by both parties on the 27th day of July, 2007.
The contract is for the provision of security services (guards) by the Plaintiff to the Respondent at the rate of N15,000.00 per security guard to be deployed to the Respondent’s campuses at Mubi and Yola respectively. According to the Appellant, the contract commenced in April 2007, with the initial manpower (security personnel) of 201 security guards. However, there was a periodic increase in the number of guards provided by the Appellant at the request of the Respondent. It is part of the Appellant’s case that the initial manpower as at April 2007, was 201 security guards. From April 2007 to October 2009, the guards were increased to 227 personnel. From November, 2009 to July 2011, the security personnel were also increased to 235 guards and from August 2011 to December 2012, when the contract was terminated, the security guards were increased to 250 personnel. All the increments were done at the instance of and on request of the Defendant.
The Appellant contends that the dispute between the parties began from November, 2009 to July, 2011 when the Respondent refused and/or neglected to pay for the 8 additional security guards deployed to it by the Appellant at its request for 21 consecutive months. The Respondent paid only for 227 security guards instead of 235 guards. The Appellant further contends that from the period of August, 2011 to November, 2012 when the guards were 250, the Respondent paid approximately for 216 guards with a shortfall of the payments for 34 guards on the ground at that time.
Similarly, in December, 2012, the Respondent paid for 209 security guards with a leftover of 41 guards, instead of 250 security guards on the grounds at time. The Appellant also claimed as part of the reliefs, the sum deducted as withholding tax and Vat by the Respondent on the salaries of the security personnel engaged by the Appellant during the contract.
On the part of the Respondent, its defence is that at a certain time material to the contract, the Appellant was under-providing the required number of security guards as agreed. According to the Respondent, although the number of security guards increased from 145 to 201 to 227 and then 250, that the Appellant at some point in time, deployed less number of security guards than was agreed upon. The Respondent contended that while the number of security guards were at 227, it never increased to 235, and that the request via Exhibit A10 by the Respondent for the 8 security guards, was not to employ additional guards but deploy the existing to required areas necessary as the Appellant had not recruited 8 additional security guards as claimed.
The Respondent further contended that the shortfall in the payment of the salaries of the guards to the Appellant reflected the number of security guards deployed by the Appellant as the Respondent had engaged on physical counting of guards deployed at its campuses.
Lastly, the Appellant queried the jurisdiction of the trial Court regarding the claim of Appellant on VAT and withholding tax.
The Appellant nominated two issues for determination of the Appeal viz:
(i) Whether the trial Court was right when it non-suited the Appellant’s case before it without giving the parties the opportunity to address the trial Court on the issue (Ground 1)
(ii) Whether the order of non-suited made by the trial Court is justified having regard to the sufficient evidence establishing the Appellant’s case before it. (Ground 2 and 3).
Learned counsel for the Respondent formulated the following two issues for determination viz:
i. Whether the learned trial Judge was right in non-suiting this suit suo motu without calling on the parties to address the Court on the issue? (From Ground 1).
ii. Whether the judgment of the trial Court could be said to be perverse when it held that the documentary evidence tendered by the Appellant did not prove the case of the Appellant at the trial? (From Grounds 2 & 3).
The issues formulated by the parties are similar in substance though differently couched by learned counsels.
On issue one, learned counsel for the Appellant submitted that the law is settled that before a Court of law can non-suit a case it must accord counsel the opportunity to address the Court on the issue. Counsel cited: Adusei v. Adebayo (2012) 3 NWLR (part 1288) pg, 534 pp 551 paras D.
Learned counsel further argued that none of the counsel to the parties raised the issue or prayed for the order of non-suit and that it was the learned trial Judge that raised same suo motu and made it a basis of his decision without affording the parties an opportunity to address him on the point. Learned counsel submitted that it was a grave error on the part of the learned trial Judge to have so proceeded. Learned counsel cited Kachalla v. Banki (2009) 8 NWLR (Pt. 982) Pg 364 pp 389 paras C–E; Adusei v. Adebayo (supra).
Learned counsel urged this Court to resolve the issue in favour of the Appellant. Submitting on the issue, learned counsel for the Respondent conceded the point and submitted that the order of non-suit made by the lower Court was wrong as parties were not afforded the opportunity of addressing the Court on the issue. Learned counsel urged the Court to set aside the order.
A non-suit as held by the Supreme Court in Odi v. Iyala (2004) 8 NWLR (Pt. 875) page D-G. per Tobi JSC:
“Is a termination of an action which did not adjudicate all relevant issues on the merit, as where a Plaintiff is unable to prove his whole case and it will be unjust to dismiss such case in its entirety or where there is a failure by the trial Judge to make proper and specific findings and an appellate Court can neither do same on the printed evidence, a rehearing or non-suit depending on the circumstances may be ordered”
See Yesufu v. African Continental Bank Ltd (1980) LPELR 3521(SC).
In the case of Ogbechie & Ors v. Onochie & Ors 1988 LPELR-2277(SC) it was held by the Apex Court that when it is proposed by a Court to make such order of non-suit further addresses should be invited from counsel on both sides. In the instant case as shown from the record, the learned trial Judge raised the issue of non-suit and made the order without any input from the parties. At page 665 of the record, the learned trial Judge upon a review of the evidence adduced by the Plaintiff (Appellant herein) stated thus:
“It is my view that evidence adduced is in variance with the claim of the Plaintiff. After taking into account the circumstances arising from the facts of this case and the state of evidence presented, it is my view that justice in this matter will better be served by non-suiting it than to dismiss it. It will be in the interest of justice for plaintiff not to be denied opportunity to have another bite of the cherry. By then the plaintiff will have put his house in good shape before approaching the Court, accordingly, I hereby non-suit this matter.”
The law is indeed settled on a long line of authorities that while it is within the competence of a Court to raise a point suo motu for the purpose of serving the ends of justice. However, it is also incumbent on the Court to invite parties, particularly the party that may be adversely affected on account of the point raise suo motu to address it on such a point before deciding on the point. See Egbuchu v. Continental Merchant Bank Plc. (2016) 8 NWLR (Pt. 1513) 192 at 208–192 at 208-209 where the Supreme Court held:
“Now the law is that a Court is not entitled to raise an issue suo motu and decide on it without affording the parties an opportunity to be heard. This is because, in doing so, the Court is seen to leave its exalted position as impartial arbiter and descend into the arena of conflict”
See also Oyekanmi v. NEPA (2000) LPELR 2873 (SC); Araka v. Ejeagwu (2000) LPELR–533 (SC); Dalek (Nig.) Ltd v. Ompadec (2007) LPELR–916 (SC).
In all the authorities cited above, the golden thread that runs through them was that where a Court raises a matter suo motu, the parties or their counsel must be given the opportunity to be heard on such an issue and that failure by the Court to hear the parties will amount to a denial of fair hearing.
In the instant case, it is not disputed that neither the parties nor their counsel in the lower Court were given the opportunity to address the Court before the decision to non-suit the case of the Appellant was taken by the learned trial Judge. The failure to afford the parties the opportunity to address it on the point was a clear breach of the Appellant’s right to fair hearing.
In the case of Odedo v. Oguebego (2015) 13 NWLR (Pt. 1476) 229 at 393 the Supreme Court held thus:
“It is trite that once a party’s right to fair hearing as guaranteed by Section 36(1) of the 1999 Constitution has been breached, the decision reached, no matter how well considered, would be declared a nullity and bound to be set aside”
See Eye v. F.R.N. (2018) LPELR 43599 (SC); Ndukauba v. Kolomo & Anor (2005) LPELR-1976 (SC); News-watch Communications Ltd v. Atta (2006) LPELR–1986 SC; Omidiran v. Patricia (2010) LPELR 9160 CA.
As I said earlier, there is no evidence on record that counsel were heard on the point raised suo motu by the learned trial Judge on which he based his decision. I am therefore of the considered view that that decision is vitiated for failure to afford the Appellant his right to fair hearing as guaranteed by the provisions of Section 36(1) of the 1999 Constitution, as amended. The entire proceedings is a nullity and is hereby set aside.
Now, having declared the entire proceedings a nullity, I do not think it necessary to dwell on the other issue raised by the Appellant. The appeal is allowed and the judgment of the lower Court delivered on 26th October, 2015 is hereby set aside. The case is remitted to the Hon. Chief Judge Adamawa State for assignment to another Judge for a fresh trial.
Parties to bear their respective costs.
CHIDI NWAOMA UWA, J.C.A.: I read before now, a draft judgment just delivered by my learned brother, JAMILU YAMMAMA TUKUR, JCA. His lordship has adequately and comprehensively resolved the issues that arose in this appeal declaring the entire proceedings a nullity, I agree with his findings and conclusion. I adopt same as mine in holding that the appeal is meritorious. I also allow the appeal, the judgment of the lower Court delivered on 26th October, 2015 is accordingly set aside.
I abide by the order by my learned brother remitting this case back to the Honourable Chief Judge of Adamawa State for re-assignment to another Judge other than the trial Judge for trial de novo. I abide by the order made as to costs in the leading judgment.
BITRUS GYARAZAMA SANGA, J.C.A.: I have the privilege of reading the draft of the Judgment just delivered by my learned brother, J. Y. Tukur, JCA. I also considered the finding and conclusion reached by my learned brother in the leading judgment and I hereby adopt it as mine. I also nullify the finding by the lower Court of non-suing this suit suo motu without cording the parties their constitutionally guaranteed right to fair hearing as enshrined under Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
I therefore allow the appeal and remit this Suit No. ADSYM/22/2013 back to the Hon. Chief Judge of Adamawa State to re-assign same to another Judge of the High Court who shall hear and determine same on the merit. I abide by the order as to costs.
Appearances:
Chief L. D. Nzadon, with him, V. G. Abasiodiong and F. A. Henney For Appellant(s)
T.S. Ibang For Respondent(s)