VELCAN ENERGY HOLDINGS DUBAI LIMITED & ANOR v. TRANSNAV PURPOSE NAVIGATION LIMITED & ANOR
(2018)LCN/12159(CA)
In The Court of Appeal of Nigeria
On Friday, the 16th day of November, 2018
CA/L/1423/2017
RATIO
COURT AND PROCEDURE: FAILURE TO HEAR AN APPLICATION IN COURT
“The real essence of this principle of law is to ensure that by the failure to hear and determine the pending application the Court has not occasioned any breach of the right to fair hearing of the party or miscarriage of justice to the party. It follows therefore, where either both or any of these twin elements are absent, a failure to hear and determine a pending application before delivery of judgment or ruling would not render the judgment or ruling a nullity. See Nalsa and Team Associates v. NNPC (1991) 7 NWLR (Pt.212) 652, See also Prince John Emeka V. Lady Margery & Ors (2012) LPELR 9338(SC).” PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.
FUNDAMENTAL RIGHT: DENIAL OF FAIR HEARING
“The term ‘fair hearing’ is in most cases synonymous with fair trial and natural justice, an issue which clearly is at the threshold of our legal system and thus once there has been a denial of fair hearing the whole proceedings automatically becomes vitiated. A denial of fair hearing can ensure from the conduct of the Court in the hearing of a case or in the judgment of the Court. However, the true test of fair hearing is the impression of a reasonable person who was present at the trial whether from the observation justice has been done in the case. See Newswatch Communications Limited V. Alhaji Ibrahim Attah (2006) 12 NWLR (Pt. 993) 144. See also Otapo V. Sunmonu (1987) 2 NWLR (Pt. 58) 587; Wilson V. AG of Bendel State (1985) 1 NWLR (Pt. 4) 572; A. U. Amadi V. Thomas Aplin & Co Ltd (1972) All NLR 413; Mohammed Oladapo Ojengbede V. M.O. Esan & Anor (2001) 18 NWLR (Pt. 746) 771.” PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.
JUSTICES
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
1. VELCAN ENERGY HOLDINGS DUBAI LTD
2. VELCAN SA. – Appellant(s)
AND
1. TRANSNAV PURPOSE NAVIGATION LIMITED
2. M/V SAM PURPOSE – Respondent(s)
BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Ruling of the Federal High Court, Lagos Judicial Division, Coram; M. B. Idris J., (as he then was) in Suit No. FHC/L/CS/39/2017: Transnav Purpose Navigation Limited & Anor V. Velcan Energy Holdings Dubai Limited & Anor., delivered on 17/11/2017, in which the proceeding in the Suit, including an application filed on 19/9/2017 by the Appellants as Interveners/Applicants, was stayed pending the conclusion of arbitration between the 1st Respondent as Claimant and the 2nd Respondent as Defendant.
The Appellants were dissatisfied with the said ruling of the Court below and had appealed against it vide a notice of appeal filed on 24/11/2017 on Eleven grounds at pages 1186 – 1200 in Volume III of the record of appeal. The three volume records of appeal were duly transmitted to this Court on 6/12/2017. The Appellants’ brief was settled by Dr. Oladapo Olanipekun SAN and filed on 12/12/2017. The 1st Respondent’s brief was settled by Faith Falade Esq., and filed on 13/4/2018 but was deemed properly filed on 16/4/2018. The 2nd Respondent did not file any brief. The Appellants’ Reply brief was settled by Dr. Oladapo Olanipekun SAN and filed on 18/8/2018. The 1st Respondent filed a notice of preliminary objection on 13/4/2018, while the Appellants filed a list of additional authorities on 28/5/2018.
At the hearing of the Appeal on 18/10/2018, Dr. Oladapo Olanipekun SAN, learned Senior Advocate for the Appellants, appearing with Chisanya Attamah Esq., Aderinsola Fagbure Esq., and Veronica Obi Esq., adopted the Appellants’ brief and Reply brief as their arguments in support of the appeal and urged the Court to allow the appeal and set aside the ruling of the Court below. On their part, Femi Adenitire Esq., learned counsel for the 1st Respondent, appearing with Faith Falade Esq., adopted the 1st Respondent’s brief as their arguments in support of their preliminary objection and in opposition of the appeal and urged the Court to strike out the appeal for being incompetent and or to dismiss the appeal for lacking in merit and to affirm the ruling of the Court below. The 2nd Respondent, though did not file any brief, was represented by Deborah Emawodia Esq., at the hearing of the appeal.
By a Writ of Summon filed along with a Statement of Claim on 12/1/2017, the 1st Respondent as Claimant claimed against the 2nd Respondent as Defendant the following reliefs, to wit:
1. An Order that the Plaintiff is entitled to set off the unpaid Plaintiff’s Credit under Charterers’ Credit Agreement dated 30/6/2016 against the Plaintiff’s financial obligations to the Defendants under the bareboat Charter Agreement.
2. The sum of USD$1,967,235.86 being the outstanding amount under the Charterers’ Credit Agreement dated 30/6/2016 together with cost of Bunkers supplied to the Defendant upon re – delivery but paid by the Plaintiff.
3. Payment of interest of 10% per annum on the above sum of USD$ 1,967,235.86 from the 26/10/2016 until payment plus costs.
See pages 1 – 32 in Vol. I of the record of appeal.
BRIEF STATEMENT OF FACTS
The facts relevant to this appeal according to the 1st Respondent are that the 1st Respondent, as Claimant before the Court below had instituted an action in rein action against the 2nd Respondent, the Vessesl ‘MV SAM PURPOSE’ and applied for the arrest of the 2nd Respondent vide a Motion Ex – parte. However, in view of a Caveat against arrest filed by the law firm of Bloomfield Law Practice, the Court below ordered the service of the Originating process together with the Motion Ex-parte for the arrest on the Caveator for the purpose of putting up security for the 1st Respondent’s claim, which the Caveator failed to provide the required security and consequent upon which the Court below ordered the arrest of the 2nd Respondent pending when satisfactory security is provided to secure the 1st Respondent’s claim. Subsequently, on 10/2/2017 the 2nd Respondent entered appearance and filed an application seeking an order for the release of the 2nd Respondent from arrest and detention or in the alternative stay further proceedings in the matter pending conclusion of arbitration in London. The parties filed and exchanged affidavit, counter affidavit and written addresses on the application
Whilst the 2nd Respondent’s application was pending, the owners of the 2nd Respondent obtained an anti – suit injunction against the 1st Respondent from further proceeding with the suit unless by arbitration and also threatened to commence contempt proceedings against the 1st Respondent, its officers and lead counsel for acting in contempt of an order of the English Court. In consequence, the 1st Respondent filed an application on 20/2/2017 for an order for stay of further proceedings in the Suit on the condition that the 2nd Respondent shall remain under arrest until satisfactory security is provided for her release. Once again the parties filed and exchanged affidavit, counter affidavit and written addresses on the application. The Court below heard both applications together and on 31/3/2017 in its ruling granted an order of stay of proceeding in the suit pending the conclusion of arbitration in London while making a further order that Ex – parte order of arrest of the 2nd Respondent shall subsist until security is provided to satisfy the 1st Respondent’s claim.
While the arbitration was ongoing in London, the Appellants filed a Motion Ex – parte on 19/9/ 2017 seeking an order to intervene in the suit for the purpose of contesting the arrest order as well as a motion on notice seeking to discharge the order of arrest of the 2nd Respondent as well as striking out or dismissing the suit on several grounds including want of competence and jurisdiction. The motion ex – parte was heard and granted by the Court below on 26/9/2017. Once again, the parties filed and exchanged affidavit, counter affidavit and written addresses in the application. Meanwhile, the 1st Respondent proceeded to file an appeal against the order of the Court below joining the Appellants as Interveners as well as a notice of preliminary objection urging the Court below to decline jurisdiction until the conclusion of the arbitration in London. The parties filed and exchanged affidavit, counter affidavit and written addresses on the preliminary objection.
On 18/10/2017, the Court below heard all the pending applications filed by the parties including the preliminary objection and on 17/11/2017, it held that its earlier order of stay of proceedings was still extant and therefore, further stayed proceedings pending the conclusion of arbitration in London and consequently all the other applications shall remain until the arbitration is concluded. See pages 33 – 72, 104 – 187, 190 – 253, 245 – 246, 312-325, 349 – 358, 362 – 372, 378 – 399 in Vol. I of the record of appeal; pages 643 – 806 Vol. II of the record of appeal; pages 957 – 966, 890 – 926, 968 – 976, 1013 – 1041, 1148 – 1153 and 1175 – 1184 in Vol. III of the record.
On the other hand, the facts relevant to this appeal according to the Appellants are that they are senior secured lenders and mortgagees in respect of the 2nd Respondent and for which there is an outstanding indebtedness of USD2,655, 000 plus further principal, interests and recovery expenses, which indebtedness arose from the Appellants’ financing of the acquisition of the vessel and the Appellants’ security interest is evinced by a panoply of loan documentation, including the Senior Secured Term Loan Agreement dated 30/6/2016 and the First Preferred Mortgage Deeds dated 1/7/ 2016 and 24/4/2017.
The 1st Respondent had advanced a charterer’s credit in respect of the 2nd Respondent, which is documented as the Charterer’s Credit Agreement dated 30/6/2016 and in recognition of the Appellants’ senior, secured and priority rights, the 1st Respondent executed a Charterer’s Subordination Undertaking dated 30/6/2016 in favor of the Appellants, By the said CSU, the 1st Respondent subjugated and deferred all of its rights in respect of the CCA to the rights of the Appellants as senior secured lenders and in particular, the 1st Respondent undertook not to enforce any rights in respect of the CCA until all obligations due to the Appellants have been met and discharged. However, in breach of the clear terms of the CSU, the 1st Respondent instituted the suit before the Court below to enforce its rights under the CCA and in further breach and in non -disclosure and concealment of the CSU, the 1st Respondent applied for and obtained an order arresting the 2nd Respondent on 19/1/2017 and proceeded to obtain an order of stay in the suit to allow the parties explore the option of arbitration, as agreed to between the 1st and 2nd Respondents under the CCA.
On 26/9/2017, Court below granted leave to the Appellants to join as Interveners to the suit for the purposes of contesting the arrest order of 19/1/2017 and also for asserting their rights/interest as senior secured lenders. The motion of notice of the Appellants already filed on 19/9/2017 was consequently deemed as properly filed and served on 26/9/2017 and on 18/10/2017 the Court below heard all the pending applications together. On 17/11/2017, the Court below in its ruling refused the 1st Respondent’s preliminary objection to the Appellants’ application dated 19 September, 2017 and rather than consider and determine the Appellants’ application filed on 19/9/2017 it proceeded to order a stay of further proceedings in the suit without any application to that effect by any of the parties and thus did not consider or make any pronouncements on the Appellants’ rights and interests as advanced in their said application, hence the appeal to this Court by the Appellants. See pages 22 – 31 in Vol. I of the record of appeal; 476 – 485, 587 – 590, 599 – 625, 626 – 637, 660 – 848 in Vol. II of the record of appeal; pages 660 – 848, 849 – 866, 874 – 878, 894 – 926, 985 – 999, 1117 – 1127, 1148 – 1153, 1175 -1184 in Vol. III of the record of appeal.
ISSUES FOR DETERMINATION
In the Appellants’ brief, four issues distilled as arising for determination from the eleven grounds of appeal, namely:
1. Considering the scope and purpose of the Appellants’ intervention at the Court below vis-a-vis the grounds and substance of the already argued application filed on 19/9/2017, whether the Court below was not in grave error in failing to consider and determine the said application filed on 19/9/2017? (Distilled from grounds 1, 4 and 9)
2. Whether the decision of the Court below to stay further proceedings without determining the Appellants’ application filed on 19/9/2017 is not in error and a breach of the Appellants’ right to fair hearing? (Distilled from grounds 2, 3, 8, 10 and 11)
3. Having regards to the legal nature of the Appellants’ rights and interests as senior secured lenders, particularly as asserted by the Appellants’ application filed on 19/9/2017, whether the Court below was not in error when it failed to strike out/dismiss the 1st Respondent’s suit and or discharge/vacate/set aside the arrest order of 19/1/2017? (Distilled from grounds 5 and 6)
4. Whether the failure of the Court below to consider and determine the Appellants’ application filed on 19/9/2017 did not occasion a breach of the Appellants’ rights to fair hearing and to own property? (Distilled from ground 7)
In the 1st Respondent’s brief, four issues were also distilled as arising for determination in this appeal, namely:
1. Whether the ruling of the Court below staying further proceedings and its order that the Appellants’ application shall remain until conclusion of Arbitration amounts to breach of Appellant’s right to own property and fair hearing?(Distilled from grounds 2, 3, 7, 8, 10 and 11)
2. Whether the decision of the Court below to defer the determination of the Appellant’s Application filed on 19/9/2017 to a future date was wrong? (Distilled from grounds 1, 4 and 9)
3. Whether the Court below was right not to strike out/dismiss the 1st Respondent’s suit and or discharge /vacate/set aside the arrest order of 9/1/ 2017? (Distilled from grounds 5 and 6)
4. Whether the Court below was right when it held that the order of stay of proceedings made on 31/3/2017 is unencumbered and subsists and thereafter ordered further stay of proceedings? (Distilled from ground 10)
I have given due considerations to the entirety of the proceedings before the Court below leading to the ruling, the subject matter of this appeal. I have also considered the submissions of learned Senior Advocate for the Appellants and learned counsel for the 1st Respondent in their respective briefs the light of the Appellant’s application filed on 19/9/2017 and the ruling of the Court below appealed against by the Appellants. It does appear to me that the apt issues arising for determination are the four issues as distilled in the Appellants’ brief, a consideration of which would, in my view, involve the consideration of the four issues as distilled in the 1st Respondent’s brief.
I shall therefore, proceed anon to consider and determine these four issues ad seriatim but first there is a preliminary objection challenging the competence of the Notice appeal, which being an issue touching on jurisdiction must be considered and resolved one way or the other first before if need be the merit or otherwise of the appeal shall be considered.
NOTICE OF PRELIMINARY OBJECTION
By a notice of preliminary objection filed on 13/4/2018, the 1st Respondent is challenging the competence of the appeal on the following grounds, to wit:
1. The Ruling appealed against by the Appellants is an interlocutory decision of the Court below
2. Grounds 2, 3, 5, 6, 7, 8, 9, 10 and 11 of the grounds of appeal contained in the Appellants’ Notice of Appeal are grounds based on mixed law and facts.
3. Neither the leave of the Court below nor of this Court was sought and obtained by the Appellants before filing grounds 2, 3, 5, 6, 7, 8, 9, 10 and 11 of the grounds of appeal.
4. Issues 1, 2, 3 and 4 of the issues for determination formulated in the Appellant’s brief filed on 12/12/2017 arose from incompetent grounds 2, 3, 5, 6, 7, 8, 9, 10 and 11 of the grounds of appeal.
RESPONDENT’S COUNSEL SUBMISSIONS
Learned Counsel for the Respondent had submitted that the notice of appeal as well as issues 1, 2, 3 and 4 as distilled in the Appellants’ brief are incompetent in that in law an interlocutory appeal shall only lie to this Court as of right where the appeal is on grounds of law alone or relates to questions as to whether the provisions of Chapter IV of this Constitution of Nigeria 1999 (as amended) has been, is being or is likely to be, contravened and contended that consequently an interlocutory appeal on grounds of facts alone or mixed law and facts shall only lie with the prior leave of the Court below or this Court sought and obtained and urged the Court to hold that grounds 2, 3, 5, 6, 7, 8, 9, 10 and 11 of the grounds of appeal, though couched as allegation of fair hearing, questions the exercise of discretion of the Court below to stay further proceedings in the suit without giving decision on the Appellants’ application filed on 19/9/2017 and or discharging the order of arrest of the 2nd Respondent made by the Court below on 19/1/2017 are thus grounds of mixed law and facts and therefore, liable to be struck out having been filed without the leave of Court and should be so struck out for being incompetent. Counsel referred to Section 241(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and relied on Opuiyo V. Omoniwari (2007) 16 NWLR (Pt. 1060) 415; Allanah & Ors V. Kpolokwu & Ors (2016) LPELR 40724(CA); Abidoye V. Alawode (2001) 6 NWLR (Pt. 709) 468; Dr. Carol Nwosu V. Dr. A.A. Eigbe Forh (2016) LPELR ? 41255(CA); Afolabi Kasali V. Access Bank Plc (2016) LPELR 41323; Adejumo V. Agumagu & Ors (2015) LPELR 24502; Oshatoba V Olujitan (2000) 5 NWLR (Pt.655)159.
It was further submitted that in law only competent grounds of appeal can give rise to live and competent issues for the determination of an appeal and thus issues formulated for determination must, a fortiori, arise from valid grounds of appeal and contended that that an issue for determination must be distilled from competent ground of appeal, and where not so distilled, is liable to be struck out and urged the Court to hold that Appellants’ issue 1 distilled from incompetent grounds 1, 4 and 9; issue 2 distilled from incompetent grounds 2, 3, 8, 10 and 11; issue three distilled from incompetent grounds 5 and 6 and issue four distilled from incompetent ground 7 are all equally incompetent and thus liable to be struck out and should be so struck out as well as the incompetent appeal thus left without any competent issue for determination. Counsel relied on Ayisa V. Akanji (1995)7 NWLR (Pt. 406) 129; Ogoyi V. Umagba (1995) 9 NWLR (Pt. 419) 283; Chukwu V. State (2007) 13 NWLR (Pt.1 052) 1; Ehuwa V. OSIEC (2006) 10 NWLR (Pt.1012) 544; Jev V. Iyortyom (2014) 14 NWLR (Pt. 1428) 575; Tahir V. Bank of the North Ltd. (2007) All FWLR (Pt. 388) 1072 @ p. 1098.
APPELLANTS’ COUNSEL REPLY SUBMISSIONS
In his reply, learned Senior Advocate for the Appellants had submitted that in law it was practically impossible for any ground of mixed law and fact to arise from the decision of the Court below appealed against in that the questions involved in this appeal are whether the Court below was constitutionally duty bound to have determined the Appellants’ application filed on 19/9/2017 and whether the 1st Respondent’s suit was not incompetent and contended that these two fundamental questions are based on pure law and urged the Court to hold that in law no leave was required to appeal on questions of law alone and that ground 2 on breach of the rights to fair hearing; grounds 3 4 and 5 on jurisdiction of the Court below; ground 6 on failure of the Court below to give effect to the express terms of the CSU dated 30/6/2016; grounds 7, 8 and 9 on breach of the rights to fair hearing and to own property; ground 10 on lack of the legal basis for the order of the Court below to further stay of proceedings and ground 11 on breach of fair hearing, which grounds are all competent and required no leave of Court being purely on law.
Learned Senior Advocate referred to Sections 36, 43 and 44 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and relied on Calabar Central Co-Operative Thrift Society V. Ekpo (2008) 6 NWLR (Pt. 1083) 408 @ p. 410; Ogbechie V. Onochie (1986) 2 NWLR (Pt. 23) 484 @ p. 493; Obi V. Etiaba (2015) 6 NWLR (Pt. 1455) 377 @ p. 390; First Bank of Nigeria V. TSA (2010) 15 NWLR (Pt.1216) 247 @ p. 291; Isah V. INEC (2016) 18 NWLR (Pt. 1544) 175 @ pp. 220 – 221; Okorocha V. PDP (2014) 7 NWLR (Pt.1406) 213 @ pp. 249 – 250; Massken (Nig) Ltd V. Amaka (2017) 16 NWLR (Pt. 1592) 438 @ p. 448; Obasi V. Mikson Est. Ind Ltd (2016) 16 NWLR (Pt. 1539) 335 @ pp. 382-383; Rossek V. ACB (1993) 8 NWLR (Pt. 312) 382 @ p. 434.
It was further submitted that the decision of the Court below made on 17/11/2017 and appealed against was by its nature a final decision and contended that in law it is immaterial whether or not the grounds are pure grounds of law once the decision appealed against is a final decision and urged the Court to hold that the 2nd Respondent having been declared bankrupt there could not be any valid arbitral proceedings for which the suit was stayed by the Court below and thus rendered the decision a final decision for which no leave of Court is required to appeal against it whether on grounds of facts alone and or on mixed law and facts and to dismiss the preliminary objection for lacking in merit. Counsel referred to Section 241 of the Constitution of Nigeria 1999 (as amended) and relied on Donald V. Saleh (2015) 2 NWLR (Pt. 1444) 529 @ p. 585; 21st Century Tech Limited V. Teleglobe American Inc.(2013) 3 NWLR (Pt. 1340) 99 @ p. 119; Anibaba V. Badejo (2013) 5 NWLR (Pt. 1346) 42 @ p. 61; Nabore V. Peace Cover (Nig.) Ltd (2015) 2 NWLR (Pt. 1443) 286 @ pp. 319 – 322.
RESOLUTION OF PRELIMINARY OBJECTION
My lords, the crux of the preliminary objection is whether grounds 2, 3, 5, 6, 7, 8, 9, 10 and 11 of the Appellants’ grounds of appeal are competent having been filed without the prior leave of either the Court below or this Court being, in the contention of the 1st Respondent, grounds of mixed law and facts. Thus, grounds 1 and 4 of the Appellants’ grounds of appeal are left unaffected and therefore, taken as competent.
Now, while in today’s jurisprudence of ‘substantial justice’ the issue of ‘mere technicality’ no longer holds sway, yet it is truism that competence is the soul of adjudication. It is in this sense the issue of competence can no longer in law truly be regarded as ‘mere technicality’ but rather be seen as substantial issue of law. In other words while eschewing technicality for its sake, a Court can only exercise jurisdiction where all conditions precedent to the exercise of its powers have been fulfilled. See Madukolu V. Nkemdilim (1962) 1 All NLR 587. See also P. E. Ltd. V. Leventis Trading Co. Ltd. (1992) 6 SC. (Pt. 1)1 @ pp. 27 – 28; Dangana & Anor. V. Usman & Ors. (2012)2 SC (Pt. 1)3.
Going by the Rules of this Court, a preliminary objection is one which contends that an appeal should not be heard and determined on the merit in the notice of appeal, for whatever reason(s), is incompetent.
This is a serious issue and if founded on grounds alleging incompetence of the appeal it should be taken seriously and considered and resolved one way or the other before if need be the merit of the appeal is considered since without competence there is really no basis for adjudication and a decision on the merit by a Court. Thus, it is only issues bordering on the competence or incompetence of the notice of appeal which can validly be raised by means of a notice of preliminary objection and not the incompetence of one or more of the grounds of appeal, which can properly be challenged by means of a motion on notice. See Odunukwe V. Ofomata (2010) 18 NWLR (P. 1225) 404. See also Lafia Local Government V. Nasarawa State Government (2012) 17 NWLR (Pt. 1328) 124.
In Inspector Isa Sarki V. John Lamela (2016) LPELR ? 40338 (CA), I had reiterated the above position of the law inter alia thus:
“It is the law that where the purpose of an objection is merely to challenge some of the grounds of appeal and not the competence of the entire appeal, the best procedure is by way of a motion on notice since its success would not in an way terminate the entire appeal in limine. On the other hand, where the purpose of an objection is to terminate in limine the entirety of the appeal, the best procedure is by way of a notice of preliminary objection challenging the competence of the entire appeal.”
In the instant appeal, the challenge to grounds 2, 3, 5, 6, 7, 8, 9, 10 and 11 of the Appellants’ ground of appeal is that they are questions of mixed law and facts even though some of these grounds were couched as breaches of the right to fair hearing. To resolve these contentions therefore, the first port of call should ordinarily be these grounds of appeal being challenged as incompetent. The affected grounds of appeal, without their particulars are here reproduced for a proper appreciation and focused analysis in this preliminary objection as follows:
Ground Two: “The learned trial judge erred in law and breached the appellants’ right to fair hearing when he stayed further proceedings in the suit without giving a decision on the appellants’ application dated 19/9/2017.”
Ground Three: “The learned trial judge erred in law and came to a wrong decision in staying further proceedings pending the conclusion of arbitration without discharging the arrest order of the vessel – MV Sam Purpose made on 19/1/2017”
Ground Five: “The learned trial judge erred in law and came to a wrong decision when he failed to give effect to the appellants’ rights as Senior Secured Creditors and First Preferred Mortgagees by discharging/vacating/setting aside the order arresting the vessel ‘MV Sam Purpose’ made on 19/1/2017 and by striking out/ dismissing the 1st Respondent’s suit”
Ground Six: “The learned trial judge erred in law when he failed to vacate/discharge/set aside the arrest order of 19/1/2017, based on the express terms and tenor of the Charterers’ Subordination Undertaking dated 30/6/2016”
Ground Seven: “The learned trial judge erred in law and breached the appellants’ right to fair hearing, and their right to own property when he failed to give a decision on the appellants’ application dated 19/9/2017”
Ground Eight: “The learned trial judge misdirected himself in law and breached the appellants’ right to fair hearing when, in refusing to determine the already argued application dated 19/9/2017, he stayed further proceedings pending the conclusion of arbitration”
Ground Nine: “The learned trial judge erred in law and breached the appellants’ right to fair hearing when he failed to consider and resolve any of the three issues formulated for determination in the appellants’ application dated 19/9/2017”
Ground Ten: “The trial Court erred in law and came to a wrong decision in holding that the order of stay of proceedings of 31/3/2017 is unencumbered and subsists, and thereafter made a further order of stay of proceedings”
Ground Eleven: “The learned trial judge erred in law and breached the appellants’ constitutional right to fair hearing when he made an order staying further proceedings in the suit suo motu.” See pages 1186 – 1200 in Volume III of the record of appeal
In considering the preliminary objection of the 1st Respondent challenging the competence of the above grounds of appeal, I have taken a calm look at these grounds of appeal in the light of the decision of the Court below appealed against together with the grounds for the preliminary objection, and I thought I should observe from the onset that the principal purpose of a ground of appeal is to give notice to the other party and the Court of the nature of the grouse or complaint which the Appellant has against the decision of the lower Court. See Adegbuyi V. A.P.C (2015) 2NWLR (Pt. 1442) 1. See also Silencer & Exhaust Pipes Co V. Farah (1998) 12 NWLR (Pt. 579); Babba V. Tafashiya (1999) 5 NWLR (Pt. 603) 468; Audu V. Gideon (2015) 12 NWLR (Pt. 1474) 495; British Airways V. Atoyebi (2006) 1 ALRN (Pt.1) 23 @ p. 32 per Saulawa, JCA. See also Ogboru V. Ibori (2006) 7 NWLR (Pt. 1000 342; Ogunbi V. Kosoko (1991) 8 NWLR (Pt. 211) 616; Ekanem V. Akpan (1991) 8NWLR (Pt. 211) 616; Ezegbu V. FATB (1992) 1 NWLR (Pt. 220) 699; Panache Communications Ltd V. Aikhomu (1994) 2NWLR (Pt. 327) 420.
It is also the law, when it comes to formulation of issues for determination in an appeal, that it is only from a competent ground or grounds of appeal that a valid issue for determination could be distilled. Thus, an issue for determination distilled from an incompetent ground of appeal
24
is incompetent and liable to be struck out or simply discountenanced by the Court. See Olufeagba V. Abdulraheem (2010) All FWLR (Pt. 512) 1034; Tahir & Anor. V. BON Ltd (2006) LPELR – 11654 (CA); Okparanta V. Elechi (2007) All FWLR (Pt. 358) 1185; Dalek (Nig) ltd V. OMPADEC (2007) 7 NWLR (Pt.1033) 402 @ p. 430; Elemchukwu Ibator & Ors V. Chief Beli Barakuro & Ors (2007) LPELR – 1384(SC); Njemanze V. Njemanze (2013) LPELR – 19885 (SC); Obi – Odu V. Duke (2006) 1 NWLR (Pt. 961) 375.
I have taken a second hard and critical look at these grounds of appeal being objected to by the 1st Respondent in the light of the grounds for the objection, and the question is whether any or all of these grounds of appeal is either ground of mixed facts and law and thus requiring the prior leave of Court as contended by the 1st Respondent or are grounds of pure law and thus requiring no prior leave of Court as contended by the Appellants?
Now, what is a question of law and what is not? In law what would constitute a question is as varied as there varieties of peculiar circumstances in each case and the categories of what would constitute question of law are never and cannot be closed.
However, over the years the Courts have set down some helpful guide in the determination of what question would amount to a question of law for the purposes of an appeal. Thus it has been reiterated that a question of law is capable of three different meanings. Firstly, it could mean a question the Court is bound to answer in accordance with a rule of law and in this sense a question of law is one predetermined and authoritatively answered by the laws. Secondly, is as to what the law is and in this sense, an appeal on a question of law means an appeal in which the argument and determination is what the true rule of law is on a certain manner. A question of the construction of statutory provision falls within this meaning. Thirdly, is in respect of those questions which normally answer questions on law only and therefore, any question which is within the province of the judge instead of the jury is called a question of law, even though in actual sense it is a question of fact, including the interpretation of documents, which is often a question of fact but within the province of the judge. See Ogbechie V. Onochie (1986) 2 NWLR (Pt.23) 484 @ p. 493 per Karibi – Whyte JSC. See also Calabar Central Co-operative Thrift Society V. Ekpo (2008) 6 NWLR (Pt. 1083) 408 @ p. 410; Obi V. Etiaba (2015) 6 NWLR (Pt. 1455) 377 @ p. 390; First Bank of Nigeria V. TSA (2010) 15 NWLR (Pt. 1216) 247 @ p. 291.
There is also the other question of whether the decision appealed against is an interlocutory or final one and since the determination of this question would in no small measure determine to a great extent the most crucial issue in this preliminary objection as to whether the prior leave of Court was required or not by the Appellants before filing the grounds of appeal being challenged, I shall consider this issue anon. The relevant provisions of law necessary for this discourse are the provisions of Section 241 (1) and Section 242(1) of the Constitution of Federal Republic of Nigeria 1999 (as amended), which provisions, I shall for the purposes of proper analysis and interpretation in this judgment, reproduce hereunder as follows:
Section 241(1): “An appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of right in following cases: –
(a)Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;
(c)Decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
(d) Decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person;
(e) Decisions in criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;
(f) Decisions made or given by the Federal High Court or a High Court-
(i) Where the liberty of a person or the custody of an infant is concerned,
(ii) Where an injunction or the appointment of a receiver is granted or refused,
(iii) In the case of a decision determining the case of a creditor or the liability of a contributory of or other officer under any enactment relating to companies in respect of misfeasance or otherwise,
(iv) In the case of a decree nisi in a matrimonial cause or a decision in an Admiralty action determining liability, and
(v) In such other cases as may be prescribed by an Act of the National Assembly.”
Section 242 (1): “Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.”
Now, from the above succinct and unambiguous provisions of Section 241(1) and 241 (2) of the Constitution of Nigeria 1999 (as amended), an appeal against a final decision of the Court below in any civil or criminal proceedings sitting as a Court of first instance shall lie to the Court of Appeal as of right. However, where an appeal does not fall within the ambit of Section 241 (1) of the Constitution of Nigeria 1999 (as amended) and thus falls under the ambit of Section 242(1) of the said Constitution then it shall lie only with the leave of either the Court below or this Court first sought and obtained. In the provisions of both Sections 241 (1) and 242 (1) of the Constitution of Nigeria 1999 (as amended) the common denominator is in the use of the word ‘shall’ in describing the right of appeal either as of right or with leave of Court. It is no longer a matter for argument, as it has become well settled in law, that the use of the word ‘shall’ in an enactment, most especially the Constitution of the land, the organic law of the land, denotes mandatory compliance and therefore, no form of deviation is expected or will be allowed in the interpretation of such mandatory provisions by the Court. See Ugwu & Anor V. Ararume & Anor (2007) 6 SC (Pt 1) @ p. 88, where the Supreme Court whilst construing the meaning of the word ‘shall’ had succinctly stated inter alia thus:
“Generally, when the word ‘shall’ is used in a Statute, it is not permissive. It is mandatory. The word ‘shall’ in its ordinarily meaning is a word of command which is normally given a compulsory meaning because it is intended to denote obligation.”
See also Oraekwe V. Chukwuma (2012) 1 NWLR (Pt. 1280) 169 @ p. 200; Okereke V Yar?adua (2008) All FWLR (Pt. 430) 626.
The question whether a decision is final or interlocutory has exercised the Courts over the years and still do pose some difficulty depending on the peculiar facts of the case under consideration. In determining whether a decision is final or interlocutory various tests have been applied or preferred as the case may be by judges in a genuine attempt to ascertain the nature of either of the decisions as to whether it is final or interlocutory. In some instances, the nature of the application test is used to determine the nature of the decision. In some other instances the nature of the order made test is used to determine the nature of the decision. In all the difficulty seems to arise from the lack of precision or certainty in the meaning of the words ‘final’ and ‘interlocutory’. It could also be as a result of the uncertainty of judicial decisions on this issue. In all however, there exist some fine, though at times very thin or even obscure, divide between what could be regarded as a final or interlocutory decision.
The importance of the distinction, notwithstanding its difficulty, is however very crucial to a valid exercise of the right of appeal, whether as of right or with leave as well as the time within which the right of appeal can be validly exercised. To fully appreciate the enormous issue involved in the characterization and differentiation between ‘final’ and ‘interlocutory’ decisions for the purposes of determining whether or not the Appellants in this appeal needed the prior leave of this Court to appeal either out of the 14 days period as prescribed by Section 24 (2) (a) of the Court of Appeal Act or on grounds of mixed law and facts, I shall take a journey into the terrain of pronouncements on the subject matters by the Court over the years both in England and in Nigeria to serve as guide to enable me chart the proper course of justice in this ground of preliminary objection in this appeal.
In the old English case of Saltex Rex & C V. Hosh (1971) 2 All ER 865 @ p. 866, Lord Denning M.R. had opined inter alia thus:
“The question of ‘interlocutory’ is so uncertain that the only thing for practitioners to do is to look up the practice books and see what has been decided on the point.”
In the older English case of Bozson V. Altrincham Urban District Council (1903) 1 k.b. 547 @ pp. 549 – 550, Lord Alverstone LC., had opined on this vexed issue inter alia thus:
“It seems to me that the real test for determining this question ought to be this: Does the judgment or order as made finally dispose of the rights of the parties? If it does, then, I think it ought to be treated as a final order; but if it does not, it is the, in my opinion, an interlocutory order.”
In the much older English case ofSalaman V. Warner (1891) 1 QBD 734 @ p. 744, Lopes L. J., gave a more precise characterization of what a final judgment or order is when he opined inter alia thus:
“I think that a judgment or order would be final within the meaning of the rules when, whichever way it went, it would finally determine the rights of the parties.”
However, in Blakey V. Latham (1890) 43 Ch. D. 23 @ p. 25, Cotton L.J., had observed so succinctly inter alia thus: “Any order, in my opinion, which does not deal with the final rights of the parties, but merely directs how the declaration of right already given in the final judgment are to be worked out is interlocutory, just as an order made before judgment is interlocutory where it gives no final decision on the matters in dispute, but merely directs how the parties are to proceed to obtain that final decision I cannot help thinking that no order in an action will be final unless a decision upon the application out of which it arises, but given in favor of the other party to the action, would have determined the natter in dispute”
Now, back home, in Omonuwa V. Oshodin (1985) 2 NWLR (Pt. 10) 924 @ p. 938, the Supreme Court had per Karibi – Whyte JSC., emphasized with inter alia thus:
“All the cases cited agree on the proposition that a decision between the parties can only be regarded as final when the determination of the Court disposes of the rights of the parties (and not merely an issue) in the case. Where only an issue is the subject matter of an order or appeal the determination of that Court is a final decision on the issue or issues before it does not finally determine the rights of the parties is in my respectful opinion interlocutory.”
My lords, it thus seems clear to me that the difficulty of differentiating ‘final’ and ‘interlocutory’ decision is still an ongoing issue and has not been decided upon with any certainty and with any exhaustive finality of its categorization into strict compartmentalization by the Courts. See Western Steel Works Ltd. & Anor V. Iron and Steel Workers Union of Nigeria (1986) 3 NWLR (Pt. 30) 617. See also Nireko Enterprises Limited V. First Bank of Nigeria Plc (2000) LPELR 6891 (CA).
So is the decision of the Court below delivered on 17/11/2017 and being appealed against by the Appellants a final or interlocutory decision? It would appear, and I say this with due deference to the 1st Respondent’s counsel, there is a double posturing in his submissions that the grounds of appeal appear purely of law as alleging breach of the right to fair hearing of the Appellants but would still involve some consideration of collateral issues rendering them mainly grounds of mixed law and facts. Having appraised all the above decisions in relation to what is either ‘final’ or ‘interlocutory’ decision and after considering the facts of this appeal and the submissions of counsel to the respective parties on the preliminary objection, I am emboldened to hold that the decision of the Court below in which the Appellants’ application filed on 19/9/2017 was neither determined nor resolved in any way or pronounced upon by the Court below nor was any time frame given for its eventual determination, bearing in mind the 90 days period as prescribed by Section 294(1) of the Constitution of Nigeria 1999 (as amended) for delivery of ruling and judgment by Courts established under the said Constitution of Nigeria 1999 (as amended), was in respect of the Appellants, who were interveners before the Court below, a final decision as between the Appellants and the 1st Respondents. See Umeh & Anor V. Okwu & Ors. (2014) LPELR 24063 (CA). See alsoFagorusi & Anor. V. Ibiyinka & Anor. (2011) LPELR 8976 (CA).
With my finding above that the decision of the Court below delivered on 17/11/2017, the subject matter of this appeal, was a final decision, do the Appellants require and leave of either the Court below or this Court to appeal against it to this Court as vehemently contended by the 1st Respondents in the preliminary objection? I think not! This is so because by virtue of Section 241(1) of the Constitution of Nigeria 1999 (as amended) the appeal being against a final decision of the Court below is as of right and no leave is required. See NITEL Plc V. Gambo Amark Ayu (2008) All FWLR (Pt. 411) 904 @ p. 906, where it was held inter alia thus:
“If the decision appealed against is a final decision from the High Court sitting at first instance, it is within an Appellant’s right to raise issue of facts or mixed law and facts in the grounds of appeal without seeking leave of Court to do so as provided in Section 241(1)(a) of the Constitution of the Federal Republic of Nigeria 1999.”
In the circumstances therefore, in relation to the question of the decision being interlocutory or final, I find no merit in the preliminary objection of the 1st Respondent, and I hold that being a final decision the Appellants do not require the prior leave of either the Court below or this Court to file any of the eleven grounds of appeal, be they on grounds of pure law and or mixed law and facts as aptly and unassailably contended by the learned Senior Advocate for the Appellants.
However, there is also the issue of whether the affected grounds are grounds of pure law and or mixed law and facts, which I shall now proceed, albeit briefly, to consider, even though the question had already been rendered merely academic in the light of my earlier finding that the appeal is against a final decision of the Court below.
I have looked calmly at grounds 2, 3, 5, 6, 7, 8, 9, 10 and 11 of the Appellants’ grounds of appeal and considered the submissions of counsel and I am aware and have averted my mind to the position of the law that where a ground of appeal complains of a failure of the Court to discharge its duty of considering and pronouncing on the issues raised before it or borders on lack of fair hearing or interpretation of provisions of the Constitution or lack of jurisdiction and or abuse of Court process, would constitute a ground of pure law, and no prior leave of Court would be required notwithstanding the nature of the appeal, whether interlocutory or final. See Isah v. INEC (2016) 18 NWLR (Pt.1544) 175 @ pp. 220 – 221; Okorocha V. PDP (2014) 7 NWLR (Pt.1406) 213 @ pp. 249- 250; Massken (Nig) Ltd V. Amaka (2017) 16 NWLR (Pt. 1592), 438 @ p. 448; Obasi V. Mikson Est. Ind. Ltd (2016) 16 NWLR (Pt.1539) 335 @ pp. 382 – 383; Rossek v ACB (1993) 8 NWLR (Pt. 312) 382 @ p. 434.
Having calmly considered the submissions of counsel for the parties on the face of the grounds of appeal being challenged by the 1st Respondent, and I cannot but agree completely with the apt and unassailable submissions of the learned Senior Advocate for the Appellants that ground 2 complains of breach of the Appellants’ rights to fair hearing; grounds 3, 4 and 5 complain of lack of jurisdiction of the Court below; ground 6 complains of failure of the Court below to give effect to the express terms of the CSU dated 30/6/2016; grounds 7, 8 and 9 complain of breach of Appellants’ rights to both fair hearing and to own property; ground 10 complain of lack of the legal basis for the order of the Court below to further stay of proceedings and ground, while ground 11 complains of breach of Appellants’ right fair hearing and that in law all these grounds are founded on pure law and thus are all competent with no prior leave of either the Court below or this Court required as vehemently but erroneously contended by the 1st Respondent.
See Section 241 (1) of the Constitution of Nigeria 1999 (as amended) See also Calabar Central Co – Operative Thrift Society V. Ekpo (2008) 6 NWLR (Pt. 1083) 408 @ p. 410; Ogbechie V. Onochie (1986) 2 NWLR (Pt. 23) 484 @ p. 493; Obi V. Etiaba (2015) 6 NWLR (Pt. 1455) 377 @ p. 390; First Bank of Nigeria V. TSA (2010) 15 NWLR (Pt.1216) 247 @ p. 291; Isah V. INEC (2016) 18 NWLR (Pt. 1544) 175 @ pp. 220 ? 221; Okorocha V. PDP (2014) 7 NWLR (Pt.1406) 213 @ pp. 249 ? 250; Massken (Nig) Ltd V. Amaka (2017) 16 NWLR (Pt. 1592) 438 @ p. 448; Obasi V. Mikson Est. Ind Ltd (2016) 16 NWLR (Pt. 1539) 335 @ pp. 382-383; Rossek V. ACB (1993) 8 NWLR (Pt. 312) 382 @ p. 434.
On the whole therefore, and in the light of all my findings above, I hold that the preliminary objection lacks merit and is liable to be dismissed. Consequently, I hereby so dismiss it.
ISSUE ONE
Considering the scope and purpose of the Appellants’ intervention at the Court below vis-A-vis the grounds and substance of the already argued application filed on 19/9/2017, whether the Court below was not in grave error in failing to consider and determine the said application filed on 19/9/2017?
APPELLANTS’ COUNSEL SUBMISIONS
On issue one learned Senior Advocate for the Appellants had submitted that the Court below erred and thereby breached the Appellants’ right to fair hearing when it failed to determine their application filed on 19/9/2017 and contended the Court below while ordering a further stay of proceedings and failing to determine the Appellants’ application to set aside the order of arrest of the 2nd Respondent, both the parties as well as the Court below were bound by the earlier valid and subsisting five positive orders made on 26/9/2017 and urged the Court to hold that the Court below was bound in law to consider and determine the Appellants’ application filed on 19/9/2017 and that the failure to do so was inconsistent with its valid, subsisting and binding orders of 26/9/2016 and thus amounted to a breach of the Appellants’ right to fair hearing and the ruling should therefore, be set aside and the appeal allowed.
Counsel referred to Section 287 (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and relied on Agbaje V. INEC (2016) 4 NWLR (Pt. 1501) 151 @ p. 166; Akere V. Governor of Oyo State (2012) 12 NWLR (Pt. 1314) 240 @ pp. 269, 278, 282-283, 290-291; Rossek V. ACB (1993) 8 NWLR (Pt. 312) 382 @ pp. 434, 471-472, 488-489, 503; African Newspapers V. FRN (1985) 2 NWLR (Pt. 6) 137 @ p. 163; Odutola Holdings Ltd V. Ladejobi (2006) 12 NWLR (Pt. 994) 321 @ p. 360.
It was further submitted that in law a Court must hear and determine every application filed before it no matter how frivolous and contended that where the issue raised is jurisdiction, then it becomes even more imperative it is considered being a threshold issue and takes priority in resolution and urged the Court to hold that going by the nature of the Appellants’ application raising issues of jurisdiction and abuse of Court’s processes, the failure of the Court below to determine same having heard it amounted to a breach of the Appellants’ right to fair hearing and rendered the ruling a nullity liable to be set aside and to allow the appeal and set aside the ruling.
Counsel relied on Dingyadi V. INEC (No. 1) (2010) 18 NWLR (Pt. 1224) 1 @ p. 53; Mobil Oil (Nig.) Unlimited V. Monokpo (2003) 18 NWLR (Pt. 852) 346 @ pp. 413 – 414; AG. Rivers State V. AG. Akwa Ibom State (2011) NWLR (Pt. 1248) 31@ p. 165; Nwora V. Nwabueze (2011) 17 NWLR (Pt. 1277) 699 @ p. 718; Senate President FRN & Anor. V. Senator Nzeribe (2004) All FWLR (Pt. 215) 359 @ pp. 375-376; Amoo V. Alabi (2003) 15 NSCQR 132 @ p. 144; Ladoja V. Ajimobi (2016)10 NWLR (Pt. 1519) 87 @ pp. 128, 129, 131, 176; Dingyadi V. INEC (No. 2) (2010) 18 NWLR (Pt. 1224) 154 @ p. 195 – 196.
It was also submitted that considering the crucial nature of the issues raised in the Appellants’ application filed on 19/9/2017, there was no justifiable basis whatsoever in law for the refusal of the Court below to consider and determine the said application and contended that the jurisdiction to determine the jurisdictional issues and abuse of Court processes raised in the Appellants’ application is inherent in the Court below and urged the Court to hold that the Court below having heard the said application on 18/10/2017 was duty bound to exercise its inherent jurisdiction to determine same one way or the other, which failure had occasioned a breach of the Appellants’ right to fair hearing and to allow the appeal and set aside the ruling of the Court below for being a nullity. Counsel relied onAttorney General of the Federation V. Guardian Newspapers Ltd (1999) 9 NWLR (Pt. 618) 187 @ pp. 217, 254; Guardian Newspapers Ltd V. Attorney General of the Federation (1995) 5 NWLR (Pt. 398) 703 @ p. 754; Okafor V. Attorney General of Anambra State (1991) LPELR – SC. 264/1988; Dingyadi V. INEC (No. 2) (Supra) @ pp. 186 – 187; Ladoja V. Ajimobi (Supra) @ p. 131; Nwokoro V. Onuma (1990) 3 NWLR (Pt. 136) 22 @ p. 23.
1ST RESPONDENT’S COUNSEL SUBMISSIONS
On his issue one, learned counsel for the 1st Respondent had submitted that on the facts and circumstances of this appeal the Court below did not in any way breached the Appellant’s right to fair hearing and or right to own property and contended that what the constitutional provision on fair hearing envisages is that the Court or Tribunal hearing the parties’ case should be fair and impartial without showing any degree of bias against any of the parties and urged the Court to hold that in the instant appeal there was no complaint that the Court below was biased because it gave all the parties before it including the Appellants equal opportunities to present their respective cases in satisfaction of basic criteria and attributes of fair hearing.
Counsel referred to Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and relied on Sheldon V. Bromfield Justices (1964) 2 QB. 573 @ p. 578; Eshenake V. Gbinije (2006) 1 NWLR (Pt. 961) 228 @ p. 249; Elike V. Nwakwoala (1984) 12 SC 301 @ pp. 341 ? 342; R. V. Sussex Justices, Ex – parte McCarthy (1924) 1KB 256 @ p. 259; Deduwa & Ors. V. Okorodudu (1976) 10 SC 329.
It was further submitted that in law the real essence of hearing is giving equal opportunity to the parties to be heard in the litigation before the Court and contended that where parties are given equal opportunity to be heard, as in the instant case before the Court below, they cannot complain of breach of the principles of fair hearing and urged the Court to hold that the Court below, having duly heard all the parties on 18/10/2017 on their respective applications, including the preliminary objection, was right when it first considered the preliminary objection and proceeded to hold that its earlier order of stay of proceedings made on 31/3/2017 pending conclusion of arbitration in London was still extant and binding and ordered all the pending applications to await the conclusion of the arbitration in London. Counsel relied on INEC V. Musa (2003) 3 NWLR (Pt.806)72; Fasogbon V. Adeogun (No. 1) (2007) All FWLR (Pt. 396) 661 @ p. 679; Nwosu V. Forh (2016) LPELR – 41255.
It was also submitted that the Appellants failed to demonstrate how their alleged interest in the 2nd Respondent was compulsorily acquired by the decision of the Court below on 17/11/2017 as to give rise to or justify the alleged breach of their rights to own property and urged the Court to hold that the decision of the Court below to defer all application to await the conclusion of arbitration was correct and to dismiss the appeal for lacking in merit and to affirm the ruling of the Court below. Counsel referred to Sections 43 and 44 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
APPELLANTS’ COUNSEL REPLY SUBMISSIONS
In his reply, learned Senior Advocate for the Appellants had reiterated his earlier submissions on the right of Appellants to fair hearing as constitutionally guaranteed to them and the duty on the Court below to determine all applications pending before it, particularly the already heard Appellants’ application and submitted that an allegation of breach of fair hearing must be practical and substantiated as the Appellants had done in the instant appeal in which the right to fair hearing is tied inextricably to the right to own property and contended that the Court below by deferring its determination of the Appellants’ application filed on 19/9/2017 had not only endorsed and approved the commencement of the suit but has perpetuated the arrest order it had made on 19/1/2017 pending whenever arbitration in London is concluded between the 1st and 2nd Respondents and urged the Court to allow the appeal and set aside the ruling of the Court below. Counsel relied on Orugbo V. Una (2002) 16 NWLR (Pt. 792) 175 @ pp. 211 – 212; Magaji V. Nigerian Army (2008) 8 NWLR (Pt. 1089) 338@ p. 377; Okanlawon V. State (2015) 17 NWLR (Pt. 1489) 445 @ pp. 482 -483; AG. Bendel V. Aideyan (1989) 4 NWLR (Pt. 118) 646 @ p. 667.
RESOLUTION OF ISSUE ONE
My Lords, the fulcrum of issue one is the vexed issue of when in law can the proceedings and or judgment or ruling of a Court be said to be in breach of the right to fair hearing as constitutionally guaranteed to the citizen in the determination of his civil rights and obligations? In law, so grave is this issue that the effect of such a breach is that it invariably renders such a judgment a nullity. See Ekpenetu V. Ofegobi (2012) 15 NWLR (Pt. 1323) 276; Amadi V. INEC (2013) 4 NWLR (Pt. 1345) 595; Ovunwo & Anor. V. Woko & Ors (2011) 17 NWLR (Pt. 1277) 522; Pan African Incorporation & Ors. V. Shoreline Lifeboat Ltd & Anor. (2010) All FWLR (Pt. 524) 56; Action Congress of Nigeria V. Sule Lamido & Ors (2012) 8 NWLR (Pt. 1303) 560 @ p. 593; Judicial Service Commission of Cross River State & Anor. V. Dr (Mrs) Asari Young (2013) 11 NWLR (Pt. 1364) 1.
Now, by Section 36 (1) of the Constitution of Nigeria 1999 (as amended) which guarantees the right of the citizen to fair hearing, it is provided thus:
“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
In considering whether or not a proceeding or judgment or ruling of a Court was in breach of the right to fair hearing of a party, the law is that each case of allegation of breach of the right to fair hearing must be decided on the peculiar facts and circumstances of each case. This is so because fair hearing is primarily a matter of fact. It is only when the facts are ascertained that the law would be applied to the facts so established to see whether or not such established facts constituted a breach of the party’s right to fair hearing. The term ‘fair hearing’ is in most cases synonymous with fair trial and natural justice, an issue which clearly is at the threshold of our legal system and thus once there has been a denial of fair hearing the whole proceedings automatically becomes vitiated. A denial of fair hearing can ensure from the conduct of the Court in the hearing of a case or in the judgment of the Court. However, the true test of fair hearing is the impression of a reasonable person who was present at the trial whether from the observation justice has been done in the case. See Newswatch Communications Limited V. Alhaji Ibrahim Attah (2006) 12 NWLR (Pt. 993) 144. See also Otapo V. Sunmonu (1987) 2 NWLR (Pt. 58) 587; Wilson V. AG of Bendel State (1985) 1 NWLR (Pt. 4) 572; A. U. Amadi V. Thomas Aplin & Co Ltd (1972) All NLR 413; Mohammed Oladapo Ojengbede V. M.O. Esan & Anor (2001) 18 NWLR (Pt. 746) 771.
The right to fair hearing is very fundamental and failure by a Court to observe it would invariably vitiate both the proceedings and judgment or ruling of such a Court, notwithstanding the merit or otherwise of the cases of the parties or indeed how meticulous the proceedings were conducted or even how sound the resultant judgment was on the merit. However, it must be pointed out at once that the issue of fair hearing must be raised with all seriousness and in good faith. It must never be raised in bad faith or merely intended as a red herring to raise a storm in a tea cup without any factual basis. See Adebesin V. The State (2014) 9 NWLR (Pt. 1413) 609 @ pp. 641 – 642, where Ngwuta JSC, had pronounced emphatically thus:
“As for the related complaint of denial of right to fair hearing, my lord Chukwuma Eneh JSC had this to say: ‘There can be no doubt from the foregoing that fair hearing has become the whipping principles for counsel trying to catch at a straw to sustain a modicum of standing in a hopeless case where the case is already dead as a dodo. The approach of counsel in general is deprecated. Fair hearing should, from what it is and represents in our adjudicative process be raised only seriously and not lightly.’ I agree with his Lordship.”
See also Abubakar V. Yar’Adua (2008) 4 NWLR (Pt. 1078) 465 @ p. 503; Uzodinma V. Izunaso (N0. 2) (2011) 17 NWLR (Pt. 1275) 30; Agbogu V. Adiche (2003) 2 NWLR (Pt. 805) 509 @ p. 531; Agbapounwu V. Agbapuonwu (1991) 1 NWLR (Pt. 165) 33 @ p. 40; Adebesin V. The State (2014) 9 NWLR (Pt. 1413) 609 @ pp. 641 – 642.
Now, at the Court below the Appellants had as Interveners/Applicants, having earlier been so granted leave by the Court below, filed a Motion on Notice on 19/9/2017 praying for the following reliefs:
1. An Order extending the time within which the applicants may apply to discharge, vacate or set aside the order arresting the vessel – MV SAM PURPOSE- made by this Hon Court on 19/1/2017
2. An Order discharging vacating or setting aside the order arresting the vessel – MV SAM PURPOSE – made by the Hon Court on the 19/1/2017.
3. An Order striking out and or dismissing this Suit in its entirety.
The grounds for the application were stated to be as follows:
i. By a Term Loan Agreement (‘the loan agreement’) dated 30 June, 2016, between the second applicant and Sam Purpose AS, the then owners of the defendant, MV SAM PURPOSE (‘the defendant vessel’); the second applicant as lender, advanced a loan facility to the sum of USD 1,520,000 (one million, six hundred and twenty thousand US dollars) to Sam Purpose AS, the borrower for part financing the purchase of the defendant vessel. Sam Purpose AS was formerly known as FF5 16 Hylle AS.
ii. The term loan facility was secured by the First Preferred Mortgage dated 1 July, 2016 and executed by the borrower – Sam Purpose AS (the owner of the vessel), in favor of the second applicant as mortgagee.
iii. the said First Preferred Mortgage, the then owners of the defendant vessel granted, conveyed and mortgaged in favour of the second applicant, its successors and assignees, the whole of the defendant vessel for the enforcement of the payment of the secured indebtedness and to secure the owners’ compliance with the terms and conditions of e loan agreement.
iv. By a Subordinated Charterers’ Credit Agreement (SCCA) dated 30 June, 2016, the plaintiff granted a subordinated credit facility to the owners of the defendant vessel on the security that the defendant vessel will be chartered to the plaintiff.
v. In recognition of the second applicant’s priority rights and interests in defendant’s vessel, the plaintiff entered into Subordination Undertaking (CSU) dated 30 June, 2016 second applicant.
vi. By the CSU, the plaintiff unequivocally and unreservedly subordinated its rights in respect of the Subordinated Charterers’ Credit Agreement 5CCA) to the second applicant’s superior rights and interests.
vii. Further to (vi) above, the plaintiff cannot demand, accept, claim or accelerate the payment of the subordinated credit or any part thereof until the obligations under the SSTLA have been fully discharged/fulfilled by the owners of the defendant vessel.
viii. By a First Supplemental Agreement executed by the second applicant id Sam Purpose AS on 23 December, 2016, the loan agreement was amended and restated as the Senior Secured Term Loan Agreement (SSTLA) dated 30 June, 2016.
ix. an internal restructuring of the applicants’ group of companies, the second applicant’s rights and interests under the SSTLA dated 30 June, 2016 and the First Preferred Mortgage dated 1 July, 2016 respectively, are assigned to the first applicant.
x. Further to (ix) above, the first applicant assumed the place of the second applicant as the holder of the senior secured rights and interests.
xi. The obligations under the SSTLA remain unfulfilled and outstanding.
xii. Further to (xi) above, the plaintiff’s rights and interests under the SCCA are not due and enforceable,
xiii. In breach of the CSU and the applicants’ rights there under, the plaintiff instituted this suit to enforce the SCCA.
xiv. Applicants assert their rights and interests in the vessel under the preferred Mortgage and by the CSU.
xv. The rights and interests of the applicants rank in priority to and over the asserted by the plaintiff in this suit.
xvi. Further to (xiii) above and in further breach of the CSU and the plaintiff’s rights there under, the plaintiff move Hon Court to order the arrest of the vessel – MV SAM JRPOSE, which order was granted by this Hon Court on 19 January, 2017.
xvii. In moving this Hon Court to grant the order in (xvi) above, the plaintiff concealed and or failed to disclose the applicants’ rights funder the CSU.
xviii. The commencement of this suit and the arrest order dated 19 January, 2017 are prejudicial to, in breach of and violate the applicants’ rights and interests under the SSTLA, CSU, as well as First Preferred Mortgages dated 1 July, 2016 and 24 April, 2017 respectively.
xix. On the application of the plaintiff and by a ruling dated 31 March, 2017, this Hon Court stayed proceedings in this suit with the arrest order subsisting pending arbitration between the plaintiff and the defendant.
xx. Since the ruling of this Hon Court in (xix) above, no substantive arbitral proceedings have taken place between the plaintiff and the defendant.
xxi. Further to (xvi) to (xx) above, the plaintiff’s actions are in bad faith and constitute a gross abuse of the processes of this Hon Court.
xxii. The applicants have overriding, vested and proprietary rights in the matter of the arrest order of 19 January, 2017.
xxiii. The Hon Court is mandated by Sections 43 and 44 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to protest vested and proprietary rights and interests.
xxiv. The plaintiff’s claim is premature and prejudicial to the superior rights and interests of the applicants under the SSTLA, CSU, as well as First Preferred Mortgages dated 1 July, 2016 and 24 April, 2017 respectively.
xxv. Further to (xxiv) and (xxv) above, this suit is Incompetent and this Hon Court is divested of the requisite jurisdiction to entertain same.
xxvi. Further to (xv) to (xxvi) above, the arrest order dated 19 January, 2017 ought to be discharged, vacated and or set aside and this suit struck out or dismissed in its entirety.
xxvii. This Hon Court has the duty and vires to grant this application.
See pages 660 – 665 in Vol. II of the record of appeal
The application was supported by an affidavit of 44 paragraphs deposed by one Ifeoluwa Ayinoluwa and several assertions relating to the alleged rights of the Appellants were deposed to therein. The parties went on to file and exchange affidavit and counter affidavit and written addresses on the application. See pages 666 – 674 in Vol. II of the record of appeal.
On 18/10/2017, the Court below heard all the pending applications of the parties, including Appellants’ application filed on 19/9/2017 and the preliminary objection of the 1st Respondent on the adoption of their respective written addresses and the applications were adjourned for ruling. On 17/11/2017, the Court below delivered its ruling, in which it stated and held inter alia thus:
“This is a ruling in relation to the various applications filed and adopted by Counsel on 18/10/2017. The applications include the following: 1. Plaintiff /Applicant’s Notice of preliminary objection dated 9/10/2017; 2. The Plaintiff/ Applicant’s Motion on Notice dated 16/10/2017; 3. The Interveners /Applicants’ Motion on Notice dated 19/9/2017. I Shall in delivering this ruling, review the arguments in respect of the Plaintiff/Applicant’s preliminary objection and give my decision before, if need be, I shall review and give a decision on the other applications – the Court has an incumbent duty to preserve the subject matter/res of this suit. The order made pursuant to the ex-parte application of 7/6/2017 was to move SAM PURPOSE from her present berth to a safe place in the inner Lagos anchorage pending the hearing and determination of the claim. In other words the order made was a preservative order”
In other words the rationale behind granting the ex parte motion is because the Court saw it necessary to protect the res. The grant of the application was discretionary and the Court exercised such discretion judicially and judiciously in the interest of justice. Therefore, I firmly believe that the order of 13/6/2017 was necessary to sustain the suit and to avoid the suit from turning academic and the order of 13/6/2017 does not annul the order of stay of proceedings neither does it affect the order of arrest. Now, I refer to the instant application challenging the jurisdiction, I do not agree that the stay of proceedings oust the jurisdiction of this Court.
However, I firmly hold that the order for stay of proceedings is unencumbered and subsists. Therefore, other applications filed shall remain until arbitration is concluded. See pages 1175 – 1184 in Vol. III of the record of appeal.
It was contended for the Appellants that the failure of the Court below to consider and determine the Appellants’ application filed on 19/9/2017 after having heard it on 18/10/2017 amounted to clear breach of the Appellants’ right to fair hearing and rendered the ruling of the Court below appealed against a nullity having been reached in flagrant breach of the right to fair hearing of the Appellants to have their application already heard determined one way or the other according to law. On the other hand, it was contended for the 1st Respondents that the Court below having come to the conclusion that its earlier order of stay of proceedings was still valid and subsisting postponed the determination of the Appellants’ application to a future date pending the conclusion of the ongoing arbitration between the 1st and 2nd Respondents in London and therefore, did not in any way breach the Appellant’s right to fair hearing.
Thus, both parties are ad idem that the Court below did not determine or pronounce upon the Appellants’ application filed on 19/9/2017, which determination it deferred to await the conclusion of arbitration in London.
My lords, it is a cardinal principle of our administration of justice that all applications properly brought before the Court must be heard and in law a party to a cause or matter is entitled and must be given the opportunity to be heard before a decision affecting his rights and obligation can be given either for or against him. It is thus the law that though a Court is enjoined to hear and determine every application before it notwithstanding how outrightly frivolous or patently irritating to the Court it may be, yet it is also the law that it is not in all cases that failure of a Court to hear and determine every application before delivering its judgment that is fatal to the proceedings and the judgment delivered therein. The real essence of this principle of law is to ensure that by the failure to hear and determine the pending application the Court has not occasioned any breach of the right to fair hearing of the party or miscarriage of justice to the party. It follows therefore, where either both or any of these twin elements are absent, a failure to hear and determine a pending application before delivery of judgment or ruling would not render the judgment or ruling a nullity. See Nalsa and Team Associates v. NNPC (1991) 7 NWLR (Pt.212) 652, See also Prince John Emeka V. Lady Margery & Ors (2012) LPELR 9338(SC).
It is principally for the above reason, amongst others, that the law is and has always been that a Court of law must not only hear, consider and determine all and every applications pending before it but must also consider and pronounce on all issues arising and properly submitted before it for determination by the contending parties. Generally issues for determination are formulated by the parties and or the Court. Thus a Court is at liberty, and possesses the jurisdiction, to modify or reject all or any of the issues formulated by the parties, and frame its own issues or reframe the issues formulated by the parties, if in its view, such issues will not lead to a proper determination of the case. It is worth being reiterated and repeated even if for the umpteenth time that in law every application filed before a Court of law must be heard and determined by the Court no matter how frivolous it may be. See FAAN V. WES (Nig.) Ltd (2011) 8 NWLR (Pt. 1249) 219 @ p. 237, where it was held inter alia thus:
“The process may be a downright abuse of the judicature as an institution. It may be stupid, reckless, irregular, aberrant or unmeritorious, but still, the court must hear it and rule on it… The position of the judgment of the court below is a nullity as it failed to do what it ought to have done in the first place i.e. treating an impending application process before it. That judgment is liable to be set aside and to accordingly to so do.”
Also in Ani V. Nna & Ors. (1996) 4 NWLR (Pt.440) 101 @ p. 120, this Court had per Niki Tobi JCA., (as he then was, later JSC and now may God bless his soul) succinctly observed inter alia thus:
“A Court of law and indeed a Court of equity have neither jurisdiction nor discretionary power not to take a process before it, whatever may be its pre-trial opinion on it. The process may be a downright abuse of the judicature as an institution or judicialism. It may be stupid, reckless, irregular, aberrant or unmeritorious; the court must hear it and rule on it”.
See also Dingyadi V. INEC (No. 1) (2010) 18 NWLR (Pt. 1224) 1 @ p. 53; Mobil Oil (Nig.) Unlimited V. Monokpo (2003) 18 NWLR (Pt.852) 346 @ pp. 413 – 414; AG. Rivers State V. AG. Akwa Ibom State (2011) NWLR (Pt. 1248) 31 @ p. 165; Nwora V. Nwabueze (2011) 17 NWLR (Pt. 1277) 699 @ p. 718; Senate President FRN & Anor V. Senator Nzeribe (2004) All FWLR (Pt. 215) 359 @ pp. 75 – 76; Amoo V. Alabi (2003) 15 NSCQR 132 @ p. 144; Nwokoro V. Onuma (1990) 3 NWLR (Pt. 136) 22 @ p. 23.
Now, while a Court may have a choice to reformulate issues and must certainly determine such issues arising for determination, it must, and is under a bourdon duty, indeed an obligation, to hear, consider and determine every application filed by parties before it and in this it has no choice. It is unthinkable, and seems to me to be the first time I am coming across the peculiar circumstances of this case, and I have been on this job of judging for quite a substantial length of time, for a trial Court to on its volition without any coercion, proceed to duly hear an application but either fail or neglect or deliberately refuse to determine or make pronouncement on it one way or the other no matter how frivolous or unmeritorious or even vexatious the application might be.
A Court which finds that an application is frivolous or vexatious or unmeritorious has indeed determined such an application, whether rightly or wrongly, but to fail or neglect or deliberately refuse to do so one way or the other is unjust and clearly would amount to a breach of the constitutionally enshrined right to fair hearing of the party whose application was either out rightly not heard or worse still heard but not determined or pronounced upon. It would clearly be a failure of duty on the part of such a Court.
See AG Federation V. Nse (2O16) LPELR- 40518 (CA). See also Adebayo V. AG of Ogun State (2008) 7 NWLR (Pt. 1055) 201; Dawodu V. National Population Commission (2000) 6 WRN 116 @ p. 118; Oyediran V. Amoo (1970) 1 ANLR 313 @ p. 317; Ojogbue V. Nnubia (1972) 6 SC 227; Atanda V. Ajani (1989) 13 NWLR (Pt. 111) 511 @ p. 539; Okonji V. Njokanma (1991) 7 NWLR (Pt. 202) 131 @ pp. 150 – 152; Katto V. CBN (1991) 9 NWLR (Pt. 214) 126 @ p. 49; Ovunwo V. Woko (2011) 17 NWLR (Pt. 1277) 522 @ pp. 546 – 547
I have taken a calm look at the ruling of the Court below as touching on the complaints of breach of fair hearing of the Appellants in relation to their application filed on 19/9/2017, and it does appear to me that no matter how zealous, indeed overzealous, the Court below seems to portray itself it ought not to consider only the issue of its order of arrest for the purposes of preserving the res the subject matter of the suit as the one and only issue it would be concerned with while relegating and indeed abandoning other equally important crucial issues raised in the Appellants’ application bordering on jurisdiction and abuse of Court’s processes.
In my finding the Court ought to and was indeed under a duty to pronounce upon and determine the Appellant’s application filed on 19/9/2017, which it had duly heard on 18/10/2017 rather than to keep in limbo for ever as it where in its ruling to await the conclusion of arbitration in London with no specific time known or set for the conclusion of the arbitration. It is my view that no Court has such a discretion to treat with so much levity the determination of the rights of a party which had been properly placed before it by way of an application seeking reliefs to which they may or not be entitled but which nonetheless the Court has a duty to determine one way or the other.
?In my finding therefore, the failure or neglect or deliberate refusal of the Court below to determine the Appellants? application filed on 19/9/2017 and which it had already heard on 18/10/2017 amounted to an outright denial of the rights if the Appellants to fair hearing as constitutionally guaranteed to them by law and such a ruling, being a nullity, cannot stand.
The right to fair hearing is sacrosanct and therefore, cannot be lightly disregarded or discarded by the Court. It is indeed one of the pillars on which the concept of justice and fairness is built. The Court, which is always to hold the balance of justice between the parties in their quest for justice, cannot and should not make it a habit of denying a party of his right to fair hearing as constitutionally guaranteed under Section 36 ((1) of the Constitution of Nigeria 1999 (as amended). See Ceekay Traders Ltd. V. General Motors Ltd. (1993) 2 NWLR (Pt. 222) 132. See also Mains Ventures Co. Ltd. V. Petroplast Industry Ltd. (2000) 4 NWLR (Pt. 651) 151 @ p. 165; Agbogu V. Adichie (2003) 2 NWLR (Pt. 805) 509 @ p. 530.
In the circumstances therefore, and having considered all the facts and submissions of counsel on this issue of allegation of breach of fair hearing by the Appellants against the decision of the Court below, I hold firmly that the Appellants were denied their constitutionally guaranteed rights to fair hearing by the unwarranted and unreasonable refusal and or failure of the Court below to determine the Appellants’ application filed on 19/9/2017 one way or the other as required of the Court below by law. The right to fair hearing, and indeed to be fairly heard, is not a cosmetic right but a fundamental one and must be scrupulously observed by the Courts., I have no difficulty whatsoever therefore, resolving issue one in favor of the Appellants against the Respondents, particularly the 1st Respondent.
ISSUES TWO, THREE AND FOUR
My lords, having come to the inescapable conclusion that the ruling of the Court below was by reason of the breach of the right to fair hearing of the Appellants a nullity and thus liable to be set aside, in law nothing worth anything can come out of such an null and invalid ruling. In my view therefore, there is nothing left to be considered under issues two, three and four, which have all been rendered merely academic. In law, there is no duty on the Court to consider issues which have become or rendered merely academic as such an exercise would not only end in futility but also end up merely draining and sapping the Court, for not just cause or reason whatsoever, of its much needed energy meant to be conserved and expended on matters which are competent to be determined on the merit. In Charles Oke & Anor V. Dr. Rahman Mimiko & Ors (2013) All FWLR (Pt. 693) 1853, the full Court of the Supreme Court per Muhammad JSC., had this to say on this issue:
“It is a principle of law long settled that the general attitude of the Courts of law is that they are loathe in making pronouncements on academic/hypothetical issues as it does not serve any useful purpose.”
See Mbachu V. Anambra- Imo Rivers Basin Development Authority, Owerri (2006) All FWLR (Pt. 342) 1482 @ p 1497.
My lords, we have been urged by the Appellants that, if the appeal turns out successful, we should invoke our enormous powers under Section 16 of the Court of Appeal Act, to consider and determine the Appellants’ application filed before the Court below on 19/9/2017 and heard by the Court below on 18/10/2017, a power which though we sparingly use but is nevertheless used in most deserving appeals, but I have already found and held that the entire ruling of the Court below, in which the Appellants’ right to fair hearing was blatantly breached, is a nullity and therefore, nothing worth anything or something can be founded upon or built upon such a nullity. In law one cannot put something on nothing and expect it to stand.
It would collapse like a pack of cards. It is better therefore, in my view, that the Appellants’ application filed on 19/9/2017 returns to the Court below, before another judge of the same Court, whose primary duty it is, for the Appellants’ application to be heard, considered and determined on its merit first so that in the event that it finds its way here again there would be something valid on which this Court can look at to consider it. See UAC Ltd. V. Mcfoy (1962) 1 AC 1. See also Marcus Ukaegbu & Ors V. Mark Nwokolo (2009) 3 NWLR (Pt. 1127) 194; Nigerian Army V. Sgt. Samuel (2013) LPELR 20931; Yusuf V. Toluhi (2008) 6 SCNJ 1; Olori Motors Co. Ltd. V. UBN Plc. (2006) 4 SCNJ 1; Okotie – Eboh V. Manager (2004) 5 SCNJ 131; Anya V. Imo Concorde Hotel Ltd. (2002) 12 SCNJ 145.
It is in the light of the above that I think and I so hold that the best order to be made should this appeal succeed is one remitting the Appellants’ application filed on 19/9/2017 to the Court below to be heard and duly determined expeditiously according to law by another judge of the said Court. This is what, in my view, the justice of this case demands and that is what I intend to and shall do in this judgment.
On the whole therefore, having resolved issue one, touching on the all important question of the flagrant breach of the Appellants’ constitutionally enshrined and guaranteed right to fair hearing in favor of the Appellants against the Respondents, particularly the 1st Respondent, I hold that this appeal has merit and ought to be allowed. Consequently, I hereby so allow it.
In the result, the Ruling of the Federal High Court, Lagos Judicial Division, Coram; M. B. Idris J., (as he then was) in Suit No. FHC/L/CS/39/2017: Transnav Purpose Navigation Limited & Anor V. Velcan Energy Holdings Dubai Limited & Anor., delivered on 17/11/2017 in which the Appellants’ application filed on 19/9/2017 was neither determined nor pronounced upon is hereby set aside.
In its place, the Appellants’ application filed before the Court below on 19/9/2017 is hereby remitted to the Hon Chief Judge of the Federal High Court for same to be reassigned to any other judge of the said Court for expeditious hearing and determination according to law.
There shall be no order as to cost.
TOM SHAIBU YAKUBU, J.C.A.: Upon my perusal, in draft, of the judgment rendered by my learned brother, BIOBELE ABRAHAM GEORGEWILL, JCA., on this appeal, I am satisfied with the reasons proffered therein, which culminated in the appeal, being allowed.
The importance of the observance by Courts, of the principle of fundamental right to fair hearing, in the conduct of proceedings, cannot be over-emphasized.
There is no dispute, as to the fact the Court below, did not consider and determine the appellants’ application, which was filed on 19th September, 2017. The law is no longer recondite, as it has remained well settled to the effect that where a motion on notice or any matter is properly placed before the Court for its consideration and determination, whether it is foolish or childish, in the opinion of the Court, it must nevertheless be considered and determined. Xtodeus Trading Co v. Vincent Standard Trading Co (1995) 8 NWLR (Pt. 412) 224; NALSA and Team Associates v. Nigerian National Petroleum Corporation (1991) 8 NWLR (Pt. 212) 652 @ 676.
It is for this and the fuller reasons proffered in the lead judgment, that l too allow the appeal. Hence the ruling of the Federal High Court, Holden at Lagos, rendered by M.B. Idris J.,(as he then was) on 17th November, 2017, in re-Suit No. FHC/L/CS/39/2017, is hereby set aside.
I abide by the consequential orders of re-trial and costs, contained in the lead judgment.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the opportunity to read in advance the lead judgment of my learned brother, BIOBELE ABRAHAM GEORGEWILL, JCA, and I am in agreement with the judgment.
I too join my learned brother in allowing this appeal for been meritorious and hereby set aside the ruling of the lower Court.
I also abide by all consequential orders in the lead judgment.
Appearances:
Dr. Oladapo Olanipekun, SAN with him, Chisanya Attamah, Esq., Aderinsola Fagbure, Esq. and Veronica Obi, Esq.For Appellant(s)
Femi Adenitire, Esq. with him, Faith Falade, Esq. for the 1st Respondent.
Deborah Emawodia, Esq. for the 2nd RespondentFor Respondent(s)
