GADZAMA v. GARBA & ORS (2022)

GADZAMA v. GARBA & ORS

(2022)LCN/16707(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Friday, February 25, 2022

CA/G/12/2018

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

HAUWA EDWARD GADZAMA APPELANT(S)

And

1. MOHAMMED GARBA 2. HAUWA HASSAN 3. MR. YOHANNA RESPONDENT(S)

RATIO

WHETHER OR NOT THE COURT CAN MAKE AN AWARD AGAINST A PERSON WHOM NO RELIEF IS SOUGHT

THE POSITION OF LAW ON PROCEEDINGS CONDUCTED IN BREACH OF A PERSON’S RIGHT TO FAIR HEARING

The issue is also settled that any proceedings conducted in breach of a person’s right to fair hearing which is guaranteed by Section 36 of the 1999 Constitution, renders the entire proceedings null and void. For instance, in the case of Kotoye V CBN (1989) 1 NWLR (Pt. 98) 419, 488, C-D, it was held as follows:
“The rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice has been done because of lack of fair hearing. It is whether a party entitled to be heard before deciding had in fact been given the opportunity of a hearing. The order or judgment thus entered is bound to be set aside. This is because such an order is against the rule of fair hearing, one of the twin pillars of natural justice which is expressed in the maxim: audi alterem partem.”
See also Wagbatsoma V FRN (2018) LPELR-43722(SC) 29-30, D. PER SANKEY, J.C.A.

THE POSITION OF LAW ON THE EFFECT OF LACK OF FAIR HEARING

The next question is: what is the effect of lack of fair hearing for the Appellant that has been established in this Appeal. Ordinarily, where there is a breach of the right of fair hearing, the whole proceedings in the course of which the breach occurred and the decision arrived at by the Court, becomes a nullity – Eye V FRN (2018) LPELR-43599(SC) 28-30, A. However, in the peculiar circumstances of this case, the denial of fair hearing was to a person who was never a party to the suit before the lower Court. He was a mere witness in the proceedings. Aggrieved by this development, he approached this Court as an interested party via an application brought under Section 243(A) of the Constitution (supra). It is instructive that the actual parties to the suit, who are Respondents to this Appeal, have not responded to this Appeal neither have they complained of a breach to their right of fair hearing. Therefore, the findings in the Appeal must necessarily be limited to the part of the Order of the lower Court directed at the Appellant only, who was not a party to the suit and who was not heard before the said Order was made against him. PER SANKEY, J.C.A.

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This Appeal is against the judgment of the High Court of Borno State sitting in Maiduguri in Suit No. BOHC/MG/CV/13/09 delivered on March 28, 2014 by A.Z. Musa, J.

The facts leading to the Appeal are briefly as follows: By a writ of summons dated 27-12-13 filed before the lower Court, the 1st Respondent claimed against the 2nd and 3rd Respondents as follows:
a. “A declaration that the Plaintiff is the legitimate interest and title holder of that plot of land measuring 100 x 50ft bearing plot No. 480 on BOSA EXT 159 on File BO/36649 paid on receipt No. 46643 dated 05-12-1995 lying, being and situate at Jiddari Polo with plot No. 480 on BOSA EXT 159 on File No. BO/36649 having purchased same from the 2nd Defendant.
b. An order of specific performance compelling the 2nd Defendant to convey the plot of land sold to them on 28-1-2004.
c. And (sic) Or An order compelling the 2nd and 3rd defendants to pay the plaintiff the current value of the land which is the sum of Two Million Four Hundred and Eighty Thousand Naira (N2,480,000),
d. A perpetual injunction restraining the 3rd Defendant from parading himself as the holder of right and interest over the said plot No. 480 on BOSA EXT 159 on File No. BO/36649.
e. Cost of this suit.”

Each of the three Defendants responded to the claim by filing their respective Statements of defence denying the claim. The 1st Respondent herein was the Plaintiff while the 2nd and 3rd Respondents were the 2nd and 3rd Defendants before the trial Court. The Appellant was not a party to the suit. Instead, he was called as a witness and testified as DW1. All the reliefs sought by the Plaintiff were against the three Respondents. At the close of trial, the learned trial Judge entered Judgment wherein he granted only relief (b) sought by the Plaintiff (now 1st Respondent). In making its order, the lower Court ordered that the 2nd Defendant and the Appellant herein should pay the Plaintiff the current value of the plot which it assessed at N1,460, 000.00.

Aggrieved by this decision, the original Appellant, Edward Gadzama sought and obtained leave to appeal as an interested party. However, before the Appeal could be heard, he died and was substituted by the present Appellant, his wife.

In the Further Amended Notice of Appeal which was filed on 24-03-17, the Appellant complained on four (4) grounds. The grounds of appeal without their particulars complained as follows:
“GROUND ONE
The learned trial Judge erred in law in making the order of payment N1,460,000.00 on the Appellant who was not a party to the suit.
GROUND TWO
The learned trial Judge erred in law when he granted reliefs that were never claimed by the 1st Respondent.
GROUND THREE
The learned trial Judge erred in law when he awarded the sun of N1,460,000.00 as the current market value of the property in dispute in the absence of any credible evidence.
GROUND FOUR
The decision is against the weight of evidence.”

The Appellant therefore prayed the Court to set aside the decision of the lower Court and allow the Appeal.

At the hearing of the appeal on 29-11-2021, whereas the Appellant was represented by Counsel, the Respondents were neither in Court nor were they represented by Counsel, even though the Record showed that they had been served individually with hearing notices and all the Court processes. This included the Further Amended Notice of Appeal and the Amended Appellant’s Brief of argument. However, none of the Respondents filed a Respondent’s Brief of argument in response to the Amended Appellant’s Brief of argument. Thus, essentially, the Appeal is not contested.

Learned Counsel for the Appellant, D. Saleh Esq., adopted the submissions in the Amended Appellant’s Brief of argument filed on 22-01-21 in urging the Court allow the Appeal and set aside the Judgment of the trial Court in its entirety.

The Appellant in her Brief of argument, distilled two issues for determination from the four grounds of appeal as follows:
(i) Whether the learned trial Judge was right when he made an order affecting the Appellant who was not a party before him and granted reliefs not sought against the Appellant. (Grounds 1, 2 and 4)
(ii) Whether the learned trial Judge was right when he awarded the sum of N1, 460, 000.00 as the current value of the plot.
Both issues, though argued separately, shall be taken together.

ARGUMENTS
Under issue one, learned Counsel for the Appellant submits that Edward Gadzama now deceased, who was substituted by the Appellant, was never a party to the suit before the lower Court. Instead, from the Record of proceedings, he only represented the 3rd Respondent during the trial and also testified as DW1. This is borne out by the writ of summons and the Amended Statement of claim. Therein, only the 1st, 2nd and 3rd Respondents were parties to the suit and none of the defendants were sued in a representative capacity.

Counsel submits that a person should not be adversely affected by a judgment in which he is not a party as it will amount to a denial of fair hearing. Reliance is placed on a host of authorities inclusive of Oguebego V PDP (2016) 4 NWLR (Pt. 1503) 446, 482; and NURTW v RTEAN (2012) 10 NWLR (Pt. 1307) 170, 187. It is also submitted in addition that since no relief was sought against the Appellant, the order by the lower Court directing him to pay the sum of N1, 460, 000.00, is a nullity. Counsel therefore submitted that the lower Court was in grave error when it made an order for a relief not claimed. He relies on Sule V Habu (2012) All FWLR (Pt. 643) 1910, 1932; Ekeru V Anuku (2011) All FWLR (Pt. 561) 1560, 1585 amongst others.

Under the second issue, learned Counsel submits that Judgments of Courts of law should be based upon the evidence, issues and facts placed before it. Courts are not to speculate or go outside the issues and facts placed before them vide the pleadings and evidence submitted to them. Courts of law are not to speculate. He relies on EFCC V Chidolue (2019) 2 NWLR (Pt. 1657) 442, 469-470.

Counsel submits that from the record, no evidence was led in proof of the value of the land claimed by the 1st Respondent, as Plaintiff. He had however put its value at N2, 480, 000.00 without adducing any evidence to establish the “current value” of the land. The lower Court in its decision, proceeded to award the sum of N1, 460, 000.00 as the “current value” of the land. Counsel submits that the 1st Respondent having failed to lead evidence in proof of the sum claimed as the current value of the plot, the lower Court should have dismissed the claim as having not been proved.

Based on these submissions, Counsel urged the Court to resolve both issues in favour of the Appellant, and to allow the Appeal, set aside the Judgment of the lower Court and dismiss the claim of the 1st Respondent.

FINDINGS
From the facts of the case in the Record of Appeal leading to this Appeal and the submissions of learned Counsel for the Appellant, the main complaint of the Appellant is hinged on the fact that an award was made against the Appellant notwithstanding that he was not a party to the proceedings at the lower Court. To put it more starkly, he was neither the Plaintiff nor was he one of the Defendants. Thus, even though he was mentioned in the pleadings of the parties, i.e., by the 2nd Defendant in particular, he was never joined as a party to the suit. Instead, he was called by the Defendants as their witness and he testified as DW1. Surprisingly however, in delivering its judgment, the learned trial Judge ordered that the 2nd Defendant as well as the Appellant (a witness) should pay to the Plaintiff the sum of N1, 460, 000.00 representing the “current value” payment for the land in dispute. This is the crux of the Appeal.

Without much ado, learned Counsel for the Appellant is absolutely right in his submissions that a Court cannot make an order against a person who is not a party before it.

Also, a Court of law cannot presume to make an award against a person against whom no relief is sought. Finally, a person cannot be subjected to the Judgment of the Court when he has not been heard. Audi alteram partem is one of the twin principles of natural justice which is firmly entrenched in Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which deals with Fundamental rights, in particular, Section 36 thereof.
The principle of law that an order cannot be made against a person who is not a party before a Court, has been affirmed and reiterated in several decisions of the apex Court, as well this Court, that it is firmly entrenched in case law. A few examples will suffice. For instance, in the case of Oyeyemi V Owoeye (2017) LPELR-41903(SC) 27-28, D-A, the Supreme Court, per Bage, JSC, held inter alia thus:
“The effect of order(s) made against persons not joined as a party is that such order is a nullity and of no effect. In our view, Counsel to the Appellants was right to have submitted at pages 12 and 13 of his Brief of argument that where a person who ought to be joined to the suit had orders made against them by the trial Judge, such proceedings ought to be a nullity, being a denial of the Appellant’s right to fair hearing.”
Again, in Cotecna Int’l Ltd V Churchgate Nig Ltd (2010) LPELR-897(SC) 443, D-E, Fabiyi JSC held –
“It goes without saying that a judgment given with an order against a person who ought to be a party but was not duly joined is to no avail. It cannot be allowed to stand.”
Indeed, the law is trite that orders of Court in an action are not binding on non-parties to the action. The general rule of law is that no person is to be adversely affected by a judgment in an action to which he was not a party because of the injustice in deciding an issue against him. Put another way, no orders will be made against a person who is not a party originally appearing or joined by the Court or any of the original parties. This is fundamental to the justice of any proceedings before the Court.
See also the decisions in NURTW V RTEAN (2012) 3 SCM 171, 178-179; Ovunwo V Woko (2011) 7 SCM 207; Aribisala V Bello (2016) LPELR-40145(CA) 27, C-F; Obiozor V Nnamua (2014) LPELR-23041(CA); Hado (Nig) Ltd V Chrisbrown Int’l Ltd (2013) LPELR-21171(CA).

Thus, the Appellant has established that there was indeed an infringement of his Constitutional right to fair hearing guaranteed under Section 36 of the Constitution (supra), particularly the principle of audi alterem partem.

The issue is also settled that any proceedings conducted in breach of a person’s right to fair hearing which is guaranteed by Section 36 of the 1999 Constitution, renders the entire proceedings null and void. For instance, in the case of Kotoye V CBN (1989) 1 NWLR (Pt. 98) 419, 488, C-D, it was held as follows:
“The rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice has been done because of lack of fair hearing. It is whether a party entitled to be heard before deciding had in fact been given the opportunity of a hearing. The order or judgment thus entered is bound to be set aside. This is because such an order is against the rule of fair hearing, one of the twin pillars of natural justice which is expressed in the maxim: audi alterem partem.”
See also Wagbatsoma V FRN (2018) LPELR-43722(SC) 29-30, D.

The next question is: what is the effect of lack of fair hearing for the Appellant that has been established in this Appeal. Ordinarily, where there is a breach of the right of fair hearing, the whole proceedings in the course of which the breach occurred and the decision arrived at by the Court, becomes a nullity – Eye V FRN (2018) LPELR-43599(SC) 28-30, A. However, in the peculiar circumstances of this case, the denial of fair hearing was to a person who was never a party to the suit before the lower Court. He was a mere witness in the proceedings. Aggrieved by this development, he approached this Court as an interested party via an application brought under Section 243(A) of the Constitution (supra). It is instructive that the actual parties to the suit, who are Respondents to this Appeal, have not responded to this Appeal neither have they complained of a breach to their right of fair hearing. Therefore, the findings in the Appeal must necessarily be limited to the part of the Order of the lower Court directed at the Appellant only, who was not a party to the suit and who was not heard before the said Order was made against him.
In consequence of all the above, I resolve issue one in favour of the Appellant. This issue having been resolved in favour of the Appellant obviates the need to look into the merit or otherwise of the second issue which is hinged on the success of issue one.
Accordingly, it is my finding that the Appellant was denied fair hearing as the Order made by the lower Court against him, when he was not a party in the proceedings before it, was in breach of his fundamental right to fair hearing under Section 36 of the Constitution (as amended).
Thus, the Order of the lower Court mandating the Appellant to pay to the 1st Respondent the sum of N1,460, 000.00 being the current value of the Plot in dispute between the Respondents (the actual parties to the suit), so far as it affects the Appellant ONLY, is a nullity. It is hereby set aside.
In the circumstances of the facts of the Appeal, parties are ordered to bear their costs.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the privilege of reading before now the judgment just delivered by my learned brother JUMMAI SANKEY JCA. I completely agree that the right to fair hearing of the appellant has been infringed upon by the lower Court. How can an order be made against a non-party to a suit? How will the order be enforced? It is indeed a nullity. See KOKORO-OWO & ORS VS LAGOS STATE GOVERNMENT & ORS (2001)11 NWLR PART 723 P. 237 where Wali JSC had this to say “The Court cannot make an order against a person who is neither a party or privy to a proceeding before it.”

I have no hesitation in agreeing with the reasoning in the leading judgment. It cannot be faulted.
I abide by the consequential orders in the leading judgment.

EBIOWEI TOBI, J.C.A.: I was afforded the privilege by my learned brother, J.H. Sankey, JCA to read in draft the lead Judgment just delivered. I agree with the reasoning and conclusion reached therein. I am really at a loss as to how the lower Court made an order against the Appellant who was not a party in the suit before it when he was just a witness. No law allows for this except where it is evident that he is a privy to the other parties. See Multi Choice (Nig) Ltd vs. MCSN Ltd/GTE (2020) 13 NWLR (Pt. 1742) page 415 at 529 – 530 paras F-A. No such evidence is before the lower Court. The decision of the lower Court as it affects the Appellant has no basis and substance, since a Court has no jurisdiction or power over a person who is not a party before it. See Ogunkunle & Ors vs. Eternal Sacred Order of the Cherubim & Seraphim & Ors (2001) LPELR-2339 (SC).
To that extent, I also declare as null and void the aspect of the judgment affecting the Appellant.
For this reason and much more for the fuller reasons advanced by my learned brother J. H. Sankey, JCA. I also set aside the aspect of that judgment affecting the Appellant.