VIDAH PACKAGING LTD & ANOR V. AUGUSTINE IKEM
(2011)LCN/4729(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of July, 2011
CA/E/223/2007
RATIO
ISSUE: MEANING OF THE WORD “ISSUE”
The pertinent question to determine in the face of the submission is – what is an “issue”? “issue” connotes various meanings depending on the sense in which it is used. Taking a clue from Black’s Law Dictionary – “Issue” means “a point in dispute between two or more parties”. “Legal Issue” means “a legal question usually at the foundation of a case and requiring a court’s decision”. “Material Issue” means “an issue that must be decided in order to resolve a controversy”. “Issue of Fact” means a point supported by one party’s evidence and controverted by another’s. This is also termed fact issue”. “Issue of Law” means a point on which evidence is undisputed, the outcome depending on the court’s interpretation of the law, Also termed legal issue.” PER AYOBODE O. LOKULO-SODIPE, JCA
FAIR HEARING: DUTY OF THE COURT BEFORE ARRIVING AT ITS DECISION TO HEAR THE PARTIES IN THE MATTER
The law is settled that a court in coming to a decision in respect of any matter before it must hear the parties in the matter. This is in the spirit of the principles of fair hearing which have been enshrined in Section 36 of the 1999 Constitution. PER AYOBODE O. LOKULO-SODIPE, JCA
DISCRETION OF THE COURT: WHETHER THE GRANT OF ADJOURNMENT IS WITHIN THE DISCRETIONARY EXERCISE OF A COURT
The law is settled that adjournment is an exercise of discretion by a court. It is also a settled principle of law that a court in the exercise of its discretion must do so judicially and judiciously. PER AYOBODE O. LOKULO-SODIPE, JCA
JUSTICES
MOHAMMED LADAN-TSAMIYA Justice of The Court of Appeal of Nigeria
AYOBODE O. LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
1. VIDAH PACKAGING LTD
2. DR. JOSEPH C. ENWEZOR – Appellant(s)
AND
AUGUSTINE IKEM – Respondent(s)
AYOBODE O. LOKULO-SODIPE, JCA (Delivering the leading Judgment): The appeal is against the adjournment sine die, by the Hon. Justice J.C. Nwadi (hereafter simply referred to as “the learned trial Judge”) of the High Court of Justice, Anambra State (hereafter simply referred to as “the lower court”) of a motion for stay of execution of judgment made to the court by the Judgment Debt/Respondent (hereafter simply referred to as “the Respondent”).
The relevant facts in relation to the motion, put briefly are that the Judgment Creditors/Appellants (hereafter simply referred to as “the Appellants”) commenced a suit against the Respondent before the lower court presided over by the learned trial Judge. Judgment was delivered in the suit in favour of the Appellants. The judgment, which is monetary in nature, was delivered on 28/2/2007.
On 6/3/2007, the Respondent filed a motion on notice dated the 5/3/2007 before the lower court seeking for an order staying the execution of the judgment of the lower court delivered on 28/2/2007. Both the Appellants and Respondent filed written addresses in respect of the motion.
When the motion came up for hearing, on 30/4/2007, learned counsel for the Respondent informed the lower court that an appeal had been lodged in the case and as such the said motion had been overtaken by events since it had been fixed for hearing on 3/5/2007 before the Court of Appeal. The learned trial Judge after saying that “a copy of the notice of the motion has been shown to the court” thereafter adjourned the motion before it, sine die.
Being dissatisfied, with the adjournment of the motion sine die the Appellants lodged an appeal to this Court by a Notice of Appeal dated 2/5/2007 and filed on the same date. The Notice of Appeal contains two grounds of appeal. The grounds shorn of their respective particulars read thus: –
GROUNDS OF APPEAL
1. GROUND ONE (1) Error in Law: The learned trial judge (sic) erred in law when without affording the Judgment Creditors/Respondents/Appellants an opportunity to be heard he adjourned the motion for stay of execution sine die.
2. GROUND TWO (2) Error in Law: The learned trial judge (sic) erred in law when he did not determine one way or the other the Judgment Debtor’s/Respondent’s motion on notice for stay of execution of the judgment of the court.”
In accordance with the Rules and practice of this Court, the Appellants duly filed and served their Brief of Argument. The Brief which is dated 20/7/2007 and filed on the same date was settled by Onyechi Araka. The Respondent filed a Notice as in Form 10A of the 2007 Rules of this Court to contend that the decision of the lower court dated 30/4/2007 be varied to read “In the circumstances the motion is struck out.” The Notice dated 7/5/2007 and filed on 12/5/2007 but deemed as properly filed and served on 10/11/2010 was filed by Chief Ikenna Egbuna. The appeal was entertained on 11/5/2011 and at the hearing Onyechi Araka learned counsel for the Appellants adopted and relied upon the Appellants’ Brief of Argument as hereinbefore identified in urging the Court to allow the appeal. Chief Ikenna Egbuna learned lead counsel for the Respondent at the hearing of the appeal equally adopted and relied on the Notice hereinbefore identified in urging the Court to dismiss the appeal and enter judgment in line with the said Notice.
The Appellants formulated two Issues for the determination of the appeal in their Brief of Argument. The issues read: –
“1. Whether the trial court was competent when it suo motu gave its 30th day of April 2007 ruling without hearing the parties before reaching a decision.
2. Whether the trial court was right when it failed to dispose of the motion on notice and/or determine the fate of the said motion on 30/4/2007.”
In Form 10A filed by the Respondent, it is contended that the decision of the lower court dated 30/4/2007 be varied as follows:
“COURT: In the circumstances the motion is struck out.”
The grounds the Respondent relies upon in seeking for the variation as stated above are: –
“i) The appeal has already been entered in this court and the Res removed from the court below.
ii) The court below no longer has jurisdiction to entertain the subject matter of the suit and the only order it can make is one striking out the motion.”
Dwelling on the first of their two issues, the Appellants submitted that it is a constitutional requirement that a court of law shall hear both sides not only in a case but also on all material issues in the case before reaching a decision which may be prejudicial to any party in the case. Section 36 of the 1999 Constitution was referred to and the case of Bada v. Nigerian Civil Aviation Training Centre, Zaria (1991)7 S.C.N.J. (pt. 1) at pages 24-25 was also cited in aid. The Appellants submitted to the effect that it was clear from the record of appeal that there was lack of hearing in respect of the motion brought by the Respondent as it pertains to them before the learned trial Judge adjourned the said motion sine die. The Appellants said to the effect that there was nothing that could have been more prejudicial and perverse in law, than what happened in respect of the motion. That this is particula1y so, as there was no application whatsoever from the Respondent necessitating the decision of the lower court adjourning the hearing of the motion on notice sine die. Again, the Appellant submitted that the decision of the lower court cannot be said to be in any way incidental or remotely connected to the said motion on notice slated for hearing on the said 30/4/2007.
The Appellants submitted to the effect that given the peculiar nature of the motion for stay of execution of judgment before the lower court, the consequence of adjourning the same sine die was that it suspended the enforcement of the judgment given in their favour sine die as well. This is because the judgment could not be enforced for as long as the motion for stay of its execution subsisted. This, the Appellants submitted, made the decision of the lower court on 30/4/2007 to be prejudicial and unfair to them. The case of Fetuga v. Bardays (sic) Bank D.C.O. (1971) All N.L.R. 30 was cited in aid. The Appellants also submitted to the effect that the decision of the lower court adjourning the motion for stay of execution of judgment sine die amounted to granting the Respondent a prayer that was not sought in the motion and that the said court granted this, suo motu. The Appellants further submitted to the effect that a court lacks the jurisdiction to resolve an issue it has raised suo moto without giving parties an opportunity to address it on the issue and the cases of Olatunji v. Adisa (1995) 2 N.W.L.R. (pt. 376) 167; Oro v. Falade (1995) 5 N.W.L R (Pt. 396) 385; and Udogu v Egwuatu (1994) 3 N.W.L.R (Pt. 330) 120 were cited in aid. It is the submission of the Appellants that the decision of the lower court on 30/4/2007 adjourning the hearing of the motion on notice sine die was wholly incompetent as it was raised suo motu by the lower court and resolved suo motu by the same lower court without averting to the parties involved in the matter. The Appellants urged the Court to resolve this issue in their favour.
Dwelling on the second of their two issues, the Appellants submitted that once an issue to be adjudicated upon is placed before a court, the court must resolve the same one way or the other. It is the submission of the Appellants that the judicial powers of the lower court on 30/4/2007 was circumscribed only to the extent of whether or not to grant or refuse the motion on notice brought by the Respondent after it must have heard the parties and nothing more. That the lower court in an unprecedented fashion however abandoned the particular issue placed before it, and on its own, developed its own issue. The Appellants submitted that there cannot be a better case of transgression into the arena of conflict between the parties than this. That by adjourning the hearing of the motion on notice sine die, the lower court abdicated its sacred role as a dispassionate umpire by going outside the prayer before it. The Appellants urged the Court to resolve this issue in their favour.
The motion on notice dated 5/3/2007 and filed on 6/3/2007 before the lower court is at page 1 of the record of appeal. On the face of the motion it was to come up for hearing on 21/3/2007. It would appear that the motion did not come up before the lower court on 21/3/2007 because the record shows that it was on 30/4/2007 that the motion came up. The relevant part of the proceeding of the lower court on 30/4/2007 in relation to the Respondent’s motion, at page 18 of the record is hereby reproduced: –
“…Ikenna Egbuna says that there is an appeal which was lodged and as such the present motion is overtaken by events since it has been fixed for hearing on 3/5/2007 at the Court of Appeal. A copy of the notice of the motion has been shown to the Court.
COURT: In the circumstances Motion is adjourned sine die.”
In their Brief of Argument, the Appellants submitted to the effect amongst others that the lower court formulated an issue suo motu and disposed of the application before it, on the basis of the said issue without hearing from the parties.
The pertinent question to determine in the face of the submission is – what is an “issue”? “issue” connotes various meanings depending on the sense in which it is used. Taking a clue from Black’s Law Dictionary –
“Issue” means “a point in dispute between two or more parties”.
“Legal Issue” means “a legal question usually at the foundation of a case and requiring a court’s decision”.
“Material Issue” means “an issue that must be decided in order to resolve a controversy”.
“Issue of Fact” means a point supported by one party’s evidence and controverted by another’s. This is also termed fact issue”.
“Issue of Law” means a point on which evidence is undisputed, the outcome depending on the court’s interpretation of the law, Also termed legal issue.”The proceeding of the lower court on 30/4/2007 in relation to the motion on notice for stay of execution of judgment filed by the Respondent has been reproduced above. Against the backdrop of the meanings of the various types of “issues” stated above, I simply do not see from the proceeding of the lower court, any issue that was formulated suo motu by the learned trial Judge and upon which he decided to adjourn the motion in question sine die. The Appellants have not been helpful in that they never identified the issue the lower court formulated suo motu. The submissions of the Appellants wound around or predicated on the alleged formulation by the lower court of an issue suo motu and that the decision to adjourn the application before it sine die upon the said issue, without giving parties the opportunity to be heard thereon are in my considered view clearly tenuous and unsubstantiated.
The proceedings of the lower court has however clearly brought to the fore the correctness of adjourning sine die, the Respondent’s motion for stay of execution of judgment upon the Respondent informing the said court that the application he made had been overtaken by events and whether or not the adjournment of the motion sine die was proper without hearing the Appellants.
The law is settled that a court in coming to a decision in respect of any matter before it must hear the parties in the matter. This is in the spirit of the principles of fair hearing which have been enshrined in Section 36 of the 1999 Constitution. In the instant matter, it is clear that the lower court never entertained the motion for stay of execution of judgment made to it by the Respondent. “Sine die” is a Latin phrase that means “without day”. The adjournment of the Respondent’s motion on notice for stay of execution of judgment sine die, therefore connotes that the motion had been adjourned with no hearing date being assigned or given to it. The motion is therefore still live, to the extent that it is yet to be heard and determined by the lower court. The lower court therefore cannot be said to have disposed of the motion talk less of doing so without granting the parties a hearing on it.
Consequent to the Respondent informing the lower court that his motion had been overtaken by events, the record does not show that the Respondent made any application in relation thereto. Given this situation, it would also appear that there was nothing the Appellants needed to have been invited by the lower court to respond to.
The law is settled that adjournment is an exercise of discretion by a court. It is also a settled principle of law that a court in the exercise of its discretion must do so judicially and judiciously. Again, I must note that the Respondent who made or brought the motion for stay of the execution of judgment pending before the lower court upon informing the court that his motion had been overtaken by events, never applied for the adjournment of the said motion. The question then is what did the lower court base its adjournment sine die of the Respondent’s motion upon? The only basis in this regard as deducible from the record of appeal is simply because the court was informed by the Respondent that the said motion had been overtaken by events. The phrase “overtaken by events” as used by the Respondent connotes nothing more than that his motion has become unnecessary in the light of happenings that had occurred after he brought or made the same. Given the disclosure by the Respondent that his motion had been overtaken by events, and the Respondent having not made any application in relation to the motion, the lower court definitely had no basis to have adjourned the motion sine die as it did. What the lower court ought to have done was to have brought the motion to an immediate end and as the motion was yet to be entertained on merit; the learned trial Judge should have struck out the motion in question on the showing of the Respondent who brought it, that the motion had been overtaken by events. The exercise of discretion by the lower court in adjourning the motion sine die therefore, was glaringly wrong in the circumstances before it as it was not exercised in accordance with settled principles of law. Much as I do not understand the lower court to have raised any issue suo motu as contended by the Appellants in their submissions under this issue, I will however still resolve the issue in favour of the Appellants as there was no basis legal basis whatsoever for the adjournment of the Respondent’s motion sine die against the backdrop of the disclosure to the said court by the Respondent who brought the motion that the very motion he brought had been overtaken by events. See UBN PLC V. ADJARHO (1997) 6 NWLR (Pt. 507) 112; where it was amongst others held to the effect that a proper exercise of discretion should be according to law and not humour. That it is not to be arbitrary, vague and fanciful, but legal and regular. It must be upon facts and circumstances presented to the court from which it must draw a conclusion governed by law. See also DAURA V. DANHAUWA (2011) All FWLR (Pt. 558) 993 at 1004 – 1005.The second of the two Issues formulated by the Appellants raises the question as to whether the lower court was right in not disposing or determining the fate of the Respondent’s motion on 30/4/2007. In relation to this issue, the Appellants submitted to the effect that the lower court had no choice but to have heard and determined the motion one way or the other and nothing more on 30/4/2007. In order words, that the lower court was duty bound to have determined the Respondent’s motion on the merit. Clearly, the submission of the Appellants in this regard, cannot be said to be sound in the light of the circumstances before the lower court when the motion came up on 30/4/2007. I am at a total loss to appreciate why the Appellants expected the lower court to have proceeded to determine the motion on the merit after it had been informed by the Respondent who brought the motion that the motion had been overtaken by events. For the lower court to have done this, would not only have been very odd or inappropriate, but would have amounted to a total waste of judicial time.
The Appellants however equally submitted to the effect that it was wrong of the lower court not to have determined one way or the other, the fate of the Respondent’s motion as it was enjoined by law, having been informed about the existence of a similar application before this Court.
I must confess that there is nothing in the proceeding of the lower court hereinbefore reproduced in this judgment, to the effect that a similar application for stay of execution of judgment was pending before this Court. Be that as it may. However as the Respondent had glaringly disclosed to the lower court the snuffing of life out of his motion by events, the Appellants are clearly on solid ground in their submission that the lower court ought to have determined the fate of the motion one way or the other. The lower court having adjourned the motion sine die clearly did this, as by the said adjournment the court continued to give life to the application. The point to note is that the lower court was however wrong in doing this as already found to be the case under issue 1. Flowing from all that has been said in relation to Issue 2, is that the Issue is resolved against the Appellants inasmuch as I have said that it is odd or inappropriate to have expected the lower court to have determined the Respondent’s motion on the merit the court having been informed that the said motion had been overtaken by events and/or that the lower court clearly determined the fate of the said motion by adjourning it sine die albeit, a wrong decision in the light of the disclosure by the Respondent that the motion had been overtaken by events.
The relief which the Appellants seek from this Court is to set aside the ruling of the lower court, hear the motion on notice under section 16 of the Court of Appeal Act and dismiss the said motion. It is my considered view that it has been sufficiently demonstrated that the adjournment of the Respondent’s motion for stay of execution of judgment by the lower court sine die has no basis in law given the disclosure to the said court that the motion it so adjourned, had been overtaken by events. The adjournment of the motion in question sine die therefore must be set aside.
The motion for stay of execution of judgment which the Appellants want this Court to hear and dismiss under Section 16 of its Act, was brought before the lower court for the purpose of staying the execution of the judgment delivered by the lower court on 28/2/2007 pending the determination of the appeal lodged against the same in this Court. I believe that this Court is entitled to take judicial notice of its own proceedings. The appeal lodged against the judgment of the lower court has not only been entered in this Court in that the record of appeal is already before this Court, but has already been entertained on 11/5/2011. When this Court exercises its powers under Section 16 of its Act in a matter, it acts in such a matter as if it were the lower court. This being the situation, the Respondent’s motion on notice which the lower court adjourned sine die simply cannot be heard by this Court under its power pursuant to Section 16 of its Act as this would amount to the Court exercising the power of the lower court in respect of an application which the lower court could no longer had entertained, as the record of appeal is before this Court. See OGUNREMI v. DADA (1962) ANLR 657.
There would however appear to be much power in this Court pursuant to its powers under Section 16 of its Act to do what the lower court should have done, in the face of the information given to it by the Respondent that his motion had been overtaken by event. This as earlier stated in this judgment was to have struck out the said motion.
In the final analysis, the appeal is meritorious and it succeeds. The Respondent’s Notice as in Form 10A, is dismissed given that what the Respondent seeks is for the upturning of the adjournment sine die of his motion by the lower court. The law is settled that it is only by an appeal in contradiction to a Notice as in Form 10A, that an aggrieved party can achieve this purpose (i.e. the reversal of the act/decision of the lower court in a matter). The adjournment sine die on 30/4/2007 of the Respondent’s motion dated 5/3/2007 and filed on 6/3/2007 seeking for the stay of execution of the judgment of the lower court delivered on 28/2/2007 is hereby set aside, In the stead of the adjournment of the said motion sine die, the motion is hereby struck out.
I make no order as to costs.
MOHAMMED LADAN TSAMIYA JCA: I agree.
SAMUEL CHUKWUDUMEBI OSEJI, JCA: I agree.
Appearances
Onyechi ArakaFor Appellant
AND
Chief Ikenna Egbuna
C.N. Osakwe; Chikodi Okwuonu
Augustine OkwulehieFor Respondent
