UGHANZE v. OKIE & ORS
(2022)LCN/16568(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, August 18, 2022
CA/A/223/2009
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
KAMTOCHUKWU UGHANZE (Substituted For Hon. N.C. Ughanze Deceased) APPELANT(S)
And
1. CHIEF JEROM OKIE 2. CLERK OF THE HOUSE OF REPRESENTATIVES 3. HON. SPEAKER OF HOUSE OF REPRESENTATIVES 4. NATIONAL ASSEMBLY RESPONDENT(S)
RATIO
WHETHER OR NOT THE ISSUE OF JURISDICTION CAN BE RAISED AT ANY STAGE OF COURT PROCEEDINGS
Now, in law, an issue of jurisdiction can be raised at any stage of the proceedings and even for the first time on appeal without the leave of Court. This is because jurisdiction is both radical and fundamental to adjudication. See Madukolu v. Nkemdilim (1962) SCNLR 341, Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319 at 334, Ansa v. RTPCN (2008) 7 NWLR (Pt. 1086) 421, Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583 and Fashogbon v. Adegun (No.l) (2007) All FWLR (Pt. 396) 644 at 658. Where, the issue of jurisdiction of the Federal High Court is raised, as in the instant case, the Court will consider the status of any one or both of the parties and the subject matter of the claim. What the Court will resort to for such determination, are the averments in the pleadings of the claimant. In other words, it is the claims of the Plaintiff or Claimant that will determine whether the Court has jurisdiction. See Oloruntoba-oju v. Abdulraheem (2009) 13 NWLR (Pt. 1157) 1, Tukur v. Gongola State Government (No.3) (1989) 4 NWLR (Pt. 117, INEC v. Olalekan (2022) LPELR – 56901 (CA) and of the Plaintiff or Claimant that will determine whether the Court has jurisdiction. See Oloruntoba-oju v. Abdulraheem (2009) 13 NWLR (Pt. 1157) 1, Tukur v. Gongola State Government (No.3) (1989) 4 NWLR (Pt. 117), INEC v. Olalekan (2022) LPELR – 56901 (CA) and Omaghoni v. Nigeria Airways Ltd (2006) 16 NWLR (Pt. 1101) 310. For that purpose, the averments in the statement of defence are of no consequence for the purpose of determining jurisdiction. PER TSAMMANI, J.C.A
THE POSITION OF LAW ON THE JURISDICTION OF THE FEDERAL HIGH COURT
Now, Section 251(1) (p) of the Constitution of the Federal Republic of Nigeria stipulates as follows:
“251. (1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters –
p. the administration or the management and control of the Federal Government or any of its agencies.”
It would be seen therefore that by the above cited provision of the Constitution, the Federal High Court is conferred with exclusive jurisdiction over all matters listed in paragraphs (a) – (s) of Sub-section 1 of Section 251 of the 1999 Constitution. In other words, the State High Court has and does exercise original jurisdiction to the exclusion of all other Courts in relation to civil matters which fall outside the original jurisdiction of the Federal High Court. See Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319, Onuorah v. Kaduna Refining & Petrochemical Co. Ltd. (2005) 6 NWLR (Pt. 921) 393, Ahmed v. Ahmed (2013) 15 NWLR (Pt. 1377) 274 and ABSIEC v. Kanu (2013) NWLR (Pt. 1370)69. PER TSAMMANI, J.C.A
THE POSITION OF LAW ON THE LAW ON THE EXCLUSIVE JURISDCITION OF THE FEDERAL HIGH COURT
Now, notwithstanding the avalanche of decided authorities on the issue of exclusive jurisdiction of the Federal High Court, it has remained a vexed issue, recurring in our Courts. This may be due to seeming two schools of thought that have emerged over the years as to the proper construction of the provisions of Sections 251(1) (a) – (s) of the Constitution. See Caravelle Resources & Investments Limited & Anor v. Gani Tarzan Marine Enterprises Limited & Anor (2017) LPELR – 49843 (CA). One school of thought is that, it is the subject matter involved in any given case that donates the jurisdictions of any Court of law. See Wema Securities and Finance Plc. v. Nigeria Agricultural Insurance Corporation (2015) 16 NWLR (Pt. 1484) 93, Adetayo v. Ademola (2010) 15 NWLR (Pt. 1215) 169 and Ogunyade v. Oshunkeye (2007) 15 NWLR (Pt. 1057) 218. The other school of thought represented by NEPA v. Edegbero (2002) LPELR – 1957) (SC), Obiuweubi v. CBN (2011) 7 NWLR (Pt. 1247) 465 at 492, Julius Berger Nig. Plc. v. Omogui (2001) 6 S. C. 185, A.G Lagos State v. A. G Federation (2014) 9 NWLR (Pt. 1412) 217, etc are to the effect that, irrespective of the subject matter or claims, once the parties involved is the Federal Government or any of its Agencies, it is the Federal High Court that has exclusive original jurisdiction. PER TSAMMANI, J.C.A
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Federal High Court, Abuja Division delivered by B. F. M. Nyako, J on the 7th day of November, 2006 in Suit No. FHC/ABJ/CS/221/2000.
By an Amended Statement of claim filed on the 14/7/2000, the 1st Respondent who was the Plaintiff in the Court below, sought against the appellant who was the defendant the following reliefs:
1. The sum of N362,160.00 (three hundred and sixty-two thousand, one hundred and sixty naira) only being the cost of repairs effected on his motor vehicle damaged by the negligent driving of the First Defendant
2. The sum of N440,000.00 (four hundred and forty thousand naira) only, being loss of earning between the 17th day of April, 2000 and the 10h day of June, 2000 when his motor vehicle was out of business, at the rate of N8,000.00 (eight thousand naira) only per day.
3. The sum of N150,000.00 (one hundred and fifty thousand naira) only as general damages for negligence.
Upon being served, the Appellant who was the 1st Defendant filed a Statement of Defence and counter-claim wherein he counter-claimed as follows:
(a) N1,927,880.00 being the sum spent on spare parts and labour in repairs of vehicle NASS 455.
(b) N555,000.00 being the sum spent on car hire services from the 17/4/2000 to the 30/06/2000 at the rate of N7,500.00 per day for 74 days.
(c) N200,000.00 general damages.
The brief facts of the case are that, on the 16/4/2000 at about 6.00pm, while one G. A. Tyotswom (PW2) was driving a Mercedes Benz 200 Salon car with Registration No. AM736 ABJ belonging to the 1st Respondent along Independence Avenue towards the Airport, he was negligently hit by a Peugeot 504 Salon car with Registration No. NASS 455 being driven recklessly by the Appellant, without regards to the safety of other road users thereby resulting to damage to the 1st Respondent’s Vehicle. That the accident was reported to the Police who investigated the incident but the parties were unable to resolve the matter amicably, resulting in the 1st Respondent instituting the action leading to this appeal claiming damages for negligence.
At the trial, the 1st Respondent as the Plaintiff called three (3) witnesses who testified as PW1, PW2 and PW3 and also tendered certain documents which were admitted in evidence. Neither the Appellant nor any of the 2nd – 4th Respondents called any witness as none of them had participated at the hearing before the trial Court. At the close of such hearing, the 1st Respondent as the Plaintiff filed and adopted his Written Address. On the 7/11/2006, the trial Court delivered Judgment and granted some of the reliefs sought by the 1st Respondent against the Appellant and the 2nd – 4th Respondents. Piqued by the decision, the Appellant filed this appeal.
The Notice of Appeal, which was filed by the leave of this Court granted on the 14/4/2014 consists of ten (10) Grounds. Same was amended by leave of this Court granted on the 15/10/2018. The Amended Notice of Appeal was then filed on the 17/10/2018. The parties then filed and exchanged Briefs of Arguments. The Amended Appellant’s Brief of Arguments was filed on the 17/10/2018. Therein five (5) issues were raised for determination as follows:
1. Whether the Federal High Court by virtue of Section 251 of the Constitution of the Federal Republic of Nigeria, 1999 as amended has jurisdiction to entertain a claim for damages for negligent driving?
(Ground 1).
2. Whether the Appellant was not denied fair hearing when there was no evidence before the trial Court that the Appellant was served with hearing notice(s)?
(Grounds 2 and 3).
3. Whether the 1st Respondent presented admissible and credible evidence in proof of his case to be entitled to the judgment as entered by the lower Court?
(Grounds 4, 5, 6, 8 and 10).
4. Was the Appellant not denied fair hearing when the learned trial Judge failed to entertain his counter-claim?
(Ground 9).
5. Whether without any specific order made by the lower Court the 1st Respondent is entitled to any claim from the Judgment of the lower Court?
(Ground 7).
The 1st Respondent’s Brief of Arguments was filed on the 15/10/2018. Therein, five issues were distilled for determination as follows:
1. Whether the Federal High Court by virtue of Section 251 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) has jurisdiction to entertain the 1st Respondent’s suit?
2. Whether the Appellant was denied fair hearing considering all the hearing notices served on all the Appellants and 2nd – 4th Respondents as Defendants before the lower Court?
(Grounds 2 and 3).
3. Whether the 1st Respondent presented admissible and credible evidence in proof of his case?
4. Whether the Appellant was denied fair hearing as per his counter-claim?
5. Whether the order of the lower Court was specific to warrant the 1st Respondent to be entitled to any claim from the Judgment of the lower Court?
(Ground 7).
The 2nd – 4th Respondents did not file any brief in response to the Appellant’s appeal but filed a cross-appeal. The said cross-appeal was filed on the 17/7/2017 pursuant to the leave of this Court granted on the 6/7/2017. I shall return to the cross-appeal later in the course of this Judgment.
Now, I have carefully considered and reflected on the issues raised by the Appellant and the 1st Respondent in this appeal. It is apparent to me, after such consideration, that the issues distilled by the Appellant and the 1st Respondent are similar in scope and substance. That being so, I propose to determine this appeal on the issues as formulated by the Appellant. I therefore begin with issue one (1).
Arguing issue one (1), learned counsel for the Appellant argued inter alia that, by Section 251(1) of the 1999 Constitution (as amended), the Federal High Court has exclusive original jurisdiction in respect of matters set out therein to the exclusion of any other Court. That in law, for the jurisdiction of the Federal High Court conferred by Section 251(1) of the Constitution (supra) to be invoked, the party or parties must be either the Federal Government or any of its agencies; and the subject matter of litigation must be within the matters set out under Section 251(1) of the said Constitution. We were then urged to hold that, from the endorsement on the Writ of Summons and the averments in the Statement of Claim, which are the primary documents to be scrutinized in order to determine the jurisdiction of the lower Court, the claims of the Plaintiff/1st Respondent relating to damages for negligence are completely outside the jurisdiction of the lower Court, and therefore incompetent. Section 251(1)(a) – (s) of the 1999 Constitution (supra) and the cases of Enterprise Bank Plc. V. Aroso (2014) 3 NWLR (Pt. 1394) 356 at 390 – 391, Dosumu v. NNPC (2014) 6 NWLR (Pt. 1403) 282, Adeyemi v. Opeyori (1976) 9-10 S.C. 31, Ladoja v. INEC (2007) 7 S. C. 99 at 160, Onuorah v. KRPC Ltd. (2005) 6 NWLR (Pt. 921) 393, KLM Royal Dutch Airlines v. Tahir (2014) 2 NWLR (Pt. 1393) 137 at 191 and Agbule v. WR & P.Co. Ltd. (2013) 6 NWLR (Pt. 1350) 318 at 361 – 362 were cited in support.
Learned counsel for the Appellant went on to submit that, the Federal High Court would not have jurisdiction if the subject matter of the suit is not within any of the items listed in paragraphs (a) – (s) of Section 251(1) of the 1999 Constitution. That, it is only where the Federal Government or any of its agencies is a party and the matter arose from any of the listed items that the Federal High Court would have jurisdiction. The cases ofSociety Bic S. A. & Ors v. Charzin Industries Ltd (2014)4 NWLR (Pt. 1398) 497, Trade Bank Plc. v. Benilux Nig. Ltd. (2003) 9 NWLR (Pt. 825) 416, Oladipo v. Nigeria Customs Service Board (2009) 41 WRN 135 at 153 and Nico Oliver v. Dangote Industries Ltd. (2009) 9 NWLR (Pt. 1150) 467 were then cited to submit that, where the subject matter is not within any of the items listed in Section 251(1)(a) – (s) of the Constitution, the mere fact that one of the parties is either the Federal Government or one of its agencies, would not confer jurisdiction on the Federal High Court. That, the 1st Respondent’s suit before the trial Court, which was premised on damages arising from the tort of negligence, the trial Court acted without jurisdiction when it heard and determined the case. The cases of Madukolu v. Nkemdilim (1962) 2 SCNLR 341 and Obiuweubi v. CBN (2011) 7 NWLR (Pt. 1247) 465 at 507 were cited in urging us to allow the appeal on this ground.
In response, learned counsel for the 1st Respondent argued that, by Section 251(1) of the 1999 Constitution (supra), the claims of the 1st Respondent touches on the vehicle belonging to the Legislative Arm of the Federal Government, and that such claim therefore relate to the administration or management and control of the Federal Government or its agency. That in the circumstances, the claim falls under the items listed within the jurisdiction of the Federal High Court. We were accordingly urged to hold that, both the parties and the subject matter are within the jurisdictional competence of the Federal High Court. Section 251(1) (p) of the 1999 Constitution and the case of Enterprise Bank Plc. v. Aroso (2014) 3 NWLR (Pt. 1394) 356 at 390 – 391 were cited in support.
Learned counsel for the 1st Respondent also contended that the evidence has established that, the offending vehicle is the property of the National Assembly of which the 2nd Respondent is its Administrative Head. Therefore, that the 2nd – 4th Respondents are agencies of the Federal Government while the subject matter is the vehicle, property of the National Assembly under the administrative or management and control of the 2nd – 4th Respondents. The case of National Electric Power Authority v. B. Edegbero & Ors (2002) LPELR – 1957 (SC) was then cited in urging us to hold that,- the claim of the 1st Respondent as Plaintiff in the trial Court, fall squarely within the jurisdiction of the Federal High Court.
Now, in law, an issue of jurisdiction can be raised at any stage of the proceedings and even for the first time on appeal without the leave of Court. This is because jurisdiction is both radical and fundamental to adjudication. See Madukolu v. Nkemdilim (1962) SCNLR 341, Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319 at 334, Ansa v. RTPCN (2008) 7 NWLR (Pt. 1086) 421, Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583 and Fashogbon v. Adegun (No.l) (2007) All FWLR (Pt. 396) 644 at 658. Where, the issue of jurisdiction of the Federal High Court is raised, as in the instant case, the Court will consider the status of any one or both of the parties and the subject matter of the claim. What the Court will resort to for such determination, are the averments in the pleadings of the claimant. In other words, it is the claims of the Plaintiff or Claimant that will determine whether the Court has jurisdiction. See Oloruntoba-oju v. Abdulraheem (2009) 13 NWLR (Pt. 1157) 1, Tukur v. Gongola State Government (No.3) (1989) 4 NWLR (Pt. 117, INEC v. Olalekan (2022) LPELR – 56901 (CA) and of the Plaintiff or Claimant that will determine whether the Court has jurisdiction. See Oloruntoba-oju v. Abdulraheem (2009) 13 NWLR (Pt. 1157) 1, Tukur v. Gongola State Government (No.3) (1989) 4 NWLR (Pt. 117), INEC v. Olalekan (2022) LPELR – 56901 (CA) and Omaghoni v. Nigeria Airways Ltd (2006) 16 NWLR (Pt. 1101) 310. For that purpose, the averments in the statement of defence are of no consequence for the purpose of determining jurisdiction.
Now, Section 251(1) (p) of the Constitution of the Federal Republic of Nigeria stipulates as follows:
“251. (1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters –
p. the administration or the management and control of the Federal Government or any of its agencies.”
It would be seen therefore that by the above cited provision of the Constitution, the Federal High Court is conferred with exclusive jurisdiction over all matters listed in paragraphs (a) – (s) of Sub-section 1 of Section 251 of the 1999 Constitution. In other words, the State High Court has and does exercise original jurisdiction to the exclusion of all other Courts in relation to civil matters which fall outside the original jurisdiction of the Federal High Court. See Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319, Onuorah v. Kaduna Refining & Petrochemical Co. Ltd. (2005) 6 NWLR (Pt. 921) 393, Ahmed v. Ahmed (2013) 15 NWLR (Pt. 1377) 274 and ABSIEC v. Kanu (2013) NWLR (Pt. 1370)69.
Now, notwithstanding the avalanche of decided authorities on the issue of exclusive jurisdiction of the Federal High Court, it has remained a vexed issue, recurring in our Courts. This may be due to seeming two schools of thought that have emerged over the years as to the proper construction of the provisions of Sections 251(1) (a) – (s) of the Constitution. See Caravelle Resources & Investments Limited & Anor v. Gani Tarzan Marine Enterprises Limited & Anor (2017) LPELR – 49843 (CA). One school of thought is that, it is the subject matter involved in any given case that donates the jurisdictions of any Court of law. See Wema Securities and Finance Plc. v. Nigeria Agricultural Insurance Corporation (2015) 16 NWLR (Pt. 1484) 93, Adetayo v. Ademola (2010) 15 NWLR (Pt. 1215) 169 and Ogunyade v. Oshunkeye (2007) 15 NWLR (Pt. 1057) 218. The other school of thought represented by NEPA v. Edegbero (2002) LPELR – 1957) (SC), Obiuweubi v. CBN (2011) 7 NWLR (Pt. 1247) 465 at 492, Julius Berger Nig. Plc. v. Omogui (2001) 6 S. C. 185, A.G Lagos State v. A. G Federation (2014) 9 NWLR (Pt. 1412) 217, etc are to the effect that, irrespective of the subject matter or claims, once the parties involved is the Federal Government or any of its Agencies, it is the Federal High Court that has exclusive original jurisdiction. I have carefully scrutinized the claims of the Plaintiff/1st Respondent. I am inclined to lean in favour of the first school of thought, which postulate that, in the determination of the jurisdiction of the Federal High Court, it is necessary to consider both the parties and the subject matter of the claim.
In that respect, the claims of the 1st Respondent before the trial Court which border on the tort of negligence arising from the reckless driving of the vehicle of the Appellant leading to the accident and damages to the vehicle of the 1st Respondent on the 16/4/2000 along Independence Avenue, Abuja, falls completely outside the jurisdiction of the Federal High Court. On that note, I hold that the claims of the 1st Respondent as Plaintiff, clearly fall outside the exclusive original jurisdiction of the Federal High Court.
Let me reiterate that, the relief sought by the 1st Respondent as averred in the pleadings in the Amended Statement of Claim does not, in any way, relate to the functioning of the Federal Government, or any of its agencies. It is not on the administration or the management and control of the Federal Government or any of its agencies, but an action founded purely in negligence against a person who happened to be a public officer. This fact does not therefore, convert the action based purely on the tort of negligence against the Appellant into an action relating to the administration or management and control of the Federal Government or any of its agencies. On that note, this issue is resolved in favour of the Appellant. See also Society Bic S. A & Ors v. Charzin Industries Ltd (supra) at 497, Trade Bank Plc. v. Benilux Nig. Ltd. (2003) 9 NWLR (Pt. 825) 416 and Oladipo v. Nigeria Customs Service Board (supra) at 153.
On issue two (2), learned counsel for the Appellant had submitted inter alia that, from 3/11/2003 until 7/6/2006 when judgment was delivered, the Appellant who was neither present in Court nor represented by counsel, was not served any hearing notice as required by law. That in law, hearing notice is the only legal means and procedure to get a party to appear in Court, and which hearing notice must be properly served on each party to the dispute. That failure to effect service of hearing notice will render the proceeding conducted without service a nullity. The cases of Onwuka v. Owolewa (2001) 7 NWLR (Pt. 713) 695, Odutola v. Kayode (1994) 2 NWLR (Pt. 324) 1 at 22 and Okogi v. Okoh (2010) 9 NWLR (Pt. 1199) 311 were cited in support.
Learned counsel for the Appellant went on to submit that, the trial Court was in error when it commenced trial on 19/11/2004 in the absence of the Appellant since the Scheduled original date of 28/10/2004 had been aborted. That in law, the trial Court should not have commenced hearing of the case on the 19/11/2004 without ascertaining that hearing notice had been issued and served on the Appellant. We were urged to hold that, the failure by the trial Court to order and serve fresh hearing notice on the 19/11/2004 and indeed, all subsequent hearing dates, violated the Appellant’s fundamental right to fair hearing thereby occasioned a miscarriage of justice. The cases of International Bank Plc. v. Onwuka (2009) 8 NWLR (Pt. 1144) 362, Dahuwa v. Adeniran (2003) 17 NWLR (Pt. 849) 376, Sken Consult (Nig.) Ltd. v. Ukey (1981) 1 S.C. 6, Reynolds Construction Co. Ltd. v. Fapohunda (2009) 33 WRN 138, etc were cited in support, and to urge us to set aside the Judgment for having been reached in breach of the Appellant’s right to fair hearing.
In response, learned counsel for the Appellant contended, inter alia, that the Record of Appeal shows that the Appellant and 2nd – 4th Respondents were properly served the Writ of Summons and they entered Appearance, and they also filed their respective statements of Defense. That, the trial Court then ordered that hearing notices be issued and served on them as required by law; and that the order of the learned trial judge was duly carried out as shown in the Additional Record of Appeal filed by the 1st Respondent. That, such compliance coupled with the fact that the Appellant is a Senior lawyer of over 30 years experience, ought to know the need to confer with his lawyers who were served hearing notices. That in the circumstances, there was no breach of the Appellant’s right to fair hearing, and to resolve this issue, also in favour of the Appellant.
Now, it is apparent that issue two (2) questions whether or not the trial Court observed the principle of fair hearing in the conduct of the proceedings leading to the judgment appealed against. This is because the observance of the right to fair hearing is a fundamental pre-requisite to a valid adjudication before Courts in the country. See Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and the cases of Newswatch Communications Ltd. v. Atta (2006) 12 NWLR (Pt. 993) 144, Shola v. Ofili (2020) LPELR – 51986 (CA).
The gravamen of the Appellant’s complaint here, is on the alleged failure of the trial Court to issue hearing notice on him when the three witnesses for the 1st Respondent testified; and when the defence of the Appellant was closed without hearing him, on the ground that, he (Appellant) deliberately stayed away from the proceedings despite having been duly served with hearing notice(s).
The true test for determining whether a party was accorded fair hearing, is the impression of a reasonable person who was present at or throughout the trial, whether from his observation the Court gave the parties to the dispute before the Court, a fair hearing. See Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587, Wilson v. A.G; Bendel State (1985) 1 NWLR (Pt. 4) 572, A.U. Amadi v. Thomas Aplin & Co. Ltd. (1972) All NLR 413 and Ojengbede v. Esan & Anor (2001) 18 NWLR (Pt. 746) 771.
To determine or resolve this issue, I propose to refer to the Record of Appeal, and the Additional Record of Appeal. From the record of appeal, the Appellant was duly served the Originating Processes filed by the Plaintiff/Applicant. The Appellant then filed his statement of Defence as well as a Counter-Claim. However, hearing in the matter did not commence until the 19/11/2004. A hearing notice had been served on the Appellant on the 16/11/2004 against the hearing of the 19/11/2004. On the said 19/11/2004, neither Appellant nor his counsel was in Court but the trial Court proceeded with the hearing, whereof PW1 was called and did testify but was never cross-examined. The learned trial judge then adjourned the suit to the 11/1/2005 for continuation of hearing without ordering that fresh hearing notice be issued and served on the Appellant.
On the 11/1/2005, the trial Court proceeded to hear the evidence the PW2 without enquiring whether or not the Appellant was served a hearing notice against that date. The matter was then adjourned to the 3/3/2005 for cross-examination of PW2 but no fresh hearing notice was ordered to be issued and served on the Appellant. On the 3/3/2005, the matter was further adjourned to the 3/5/2005 for continuation of hearing but again, no hearing notice was ordered to be issued and served on the Appellant who was again, absent. On the 3/5/2005, without any proof of service on the Appellant, the trial Court proceeded to hear the evidence of PW3 and the matter, again adjourned to the 22/6/2005 from cross-examination of PW3 but no order was given for the issuance and service of hearing notice on the Appellant. There is no record of what transpired in Court on the 22/6/2005 but the matter came up on the 31/1/2006 wherein PW3 was discharged without any proof of service of hearing notice on the Appellant. The matter was again adjourned to the 21/3/2006 for defence without any order for the issuance and service of fresh hearing notice on the Appellant.
On the 21/3/2006, there was again, no proof of service of hearing notice on the Appellant but the matter was further adjourned to the 27/4/2006 for continuation of defence. When the matter came up on the 27/4/2006, there was again no proof of service on the Appellant but the trial Court closed the defence and adjourned to the 12/7/2006 for addresses. On the 12/7/2006, the matter was further adjourned to the 3/7/2006 for address but no order was made that fresh hearing notice be issued and served on the Appellant. On the 31/7/2006 there was again no proof of service and the case was again adjourned to the 18/9/2006 for adoption of final addresses but the Court did not sit on the 18/9/2006. The matter came up on the 25/10/2006, and there was no proof of service on the Appellant of either the Written final address of the 1st Respondent on the Appellant or hearing notice but the Court proceeded and permitted the 1st Respondent to adopt his Written Address and the case was adjourned to the 7/11/2006 for judgment, and judgment was indeed delivered on the 7/11/2006.
Now, it is apparent as chronicled above, that the Appellant was not served any hearing notice against the 11/1/2005, 3/3/2005, 3/5/2005, 22/6/2005, 31/1/2006, 21/3/2006, 27/4/2006, 12/7/2006, 31/7/2006, 18/9/2006 and 25/10/2006 including the 7/11/2006 when judgment was delivered. It is my view, which I hold, that the conduct of the proceedings on the above mentioned dates, without issuing and serving hearing notice on the Appellant, violated the Appellants constitutional right to fair hearing. In other words, the trial Court denied the Appellant of the opportunity to be heard before it could reach a decision which affected his civil right and obligation in relation to the 1st Respondent’s claim and the Appellant’s counter-claim. The issuance and service of hearing notice as a constituent element of the constitutional right to fair hearing as guaranteed by Section 36(1) of the 1999 Constitution requires that:
“(a) Where a party is entitled to hearing notice but there is failure to so serve him, such failure goes to the root and competence or jurisdiction of the Court to hear and determine the matter. Thus service of hearing notice is a condition precedent to the exercise of jurisdiction by any Court
(b) The service of hearing notice must be proper service such that an improper or invalid service of hearing notice will also render the proceedings invalid and a nullity.
(c) Thus, where the failure of a party to appear in Court is due to failure to serve him hearing notice, any proceeding conducted and judgment given in such circumstance will be one without jurisdiction and liable to be set aside.
(d) Therefore, service of hearing notice on a party intimating him of the date of hearing, is a fundamental requirement of fair hearing, as it is such service that will confer on the Court, the jurisdiction to determine on any dispute touching on the rights and liabilities of such person.
Based on the above stated principles therefore, whenever a matter is scheduled for hearing on a particular date, the Court seised of the matter has the duty to satisfy itself that a party entitled to be served, is duly served and is aware that the matter is coming up for hearing on the date so adjourned to. The Court cannot therefore assume that a party has been duly served. The duty of the Court is to satisfy itself, that the party has infact been served. See Leedo Presidential Motel v. Bon Ltd (1998) 10 NWLR (Pt. 570) 353, Auto Import Export v. Adebayo (2002) 18 NWLR (Pt. 799) 554, P.N. Emerah & Sons (Nig.) Ltd v. Dunu (1998) 9 NWLR (Pt. 564) 86 and Agena v. Katseen (1998) 3 NWLR (Pt. 543) 560.
Having perused carefully, the record of appeal, I am of the firm view that, the proceedings of the Court below leading to the judgment appealed against is a clear case of travesty of justice and an undiluted breach of the Appellant’s fundamental right to fair hearing as guaranteed him by Section 36(1) of the 1999 Constitution. The Supreme Court, which is the Apex Court in this Country, has admonished all Courts below it, including this Court, to always be fair and render equal treatment to the parties before it. This will entail giving both or all parties to the dispute, the opportunity to participate in the entire proceedings, including the right to cross-examine the witnesses called by the other side. See Onwuka v. Owolewa (2011) 7 NWLR (Pt. 713) 695, Shola v. Ofili (2020) LPELR – 51986 (CA) and Okogi v. Okoh (2010) 9 NWLR (Pt. 1199) 311.
Flowing from the above, the trial Court had a duty not only to issue hearing notice for service on the Appellant but to also ascertain on the adjourned date, that such hearing notices were infact served on the Appellant before hearing on the 1st Respondent’s case. Sadly, the trial Court failed to take any of those steps so as to ensure that the Appellant was adjourned date, that such hearing notices were infact served on the Appellant before hearing on the 1st Respondent’s case. Sadly, the trial Court failed to take any of those steps so as to ensure that the Appellant was given the opportunity to participate in the proceedings. I therefore hold that the entire proceedings of the trial Court conducted in the absence of service of hearing notices on the Appellant, and the resultant judgment thereon delivered on the 7/11/2006 is a nullity and liable to be set aside. See the case of P. W. Emerah & Sons (Nig.) Ltd. v. Dunu (supra) at 96, where it was held that:
“Where the failure of a party in a case to appear in Court is due to the failure to serve him a notice of hearing, any judgment given in that circumstance will be one given without jurisdiction and is liable to be set aside on appeal… It is a judgment entered without jurisdiction and it is therefore, a nullity.”
Having held as above, I hereby resolve this issue, also in favour of the Appellant.
I have in issues 1 and 2 resolved that the 1st Respondent’s suit before the lower Court was incompetent and that the trial Court lacked the jurisdiction to hear and determine on the claims of the Plaintiff/1st Respondent. On that note, I hereby order that the 1st Respondent’s claim before the Court below, be struck out as being incompetent thereby depriving the Court of jurisdiction to hear and determine same. In the Alternative, I have found that the proceedings and judgment of the trial Court given on the 7/11/2006 was in breach of the Appellant’s Fundamental right to fair hearing. For that reason, the proceedings and judgment given on the 7/11/2006 on such incompetent process and in breach of the Appellant’s right to fair hearing are invalid, null and void; and accordingly set aside.
Having thus resolved, it is apparent that issues 3, 4 and 5 have become academic and of no utilitarian value to be considered and resolved on the merit. It is trite law that academic discourses have no place in adjudication because, Courts deal with live issues before them. Therefore, on issues 1 and 2 which have been resolved in favour of the Appellant, this appeal has merit and it is accordingly allowed. On that note, I hereby order that the judgment of the Federal High Court of justice, sitting in Abuja in Suit No: FHC/ABJ/CS/221/2000, is hereby set aside.
The Suit No. FHC/ABJ/CS/221/2000 is accordingly struck out for being incompetent.
CROSS-APPEAL
1. CLERK OF THE HOUSE OF REPRESENTATIVES
2. HON. SPEAKER OF HOUSE OF REPRESENTATIVES
3. NATIONAL ASSEMBLY APPELLANTS
AND
1. CHIEF JEROM OKIE
2. KAMTOCHUKWU UGHANZE RESPONDENTS
This Cross-Appeal is also against the Judgment of the Federal High Court, Abuja Division delivered by B. F. M. Nyako, J in Suit No. FHC/ABJ/CS/221/2000.
The Original Notice of Cross-Appeal was filed on the 17/7/2017 consisting of two(2) Grounds of Appeal. Same was amended and filed on the 8/3/2017 by the leave of this Court granted on the 9/3/2020. The cross-appeal was thus heard on the Amended Notice of cross-appeal filed on the 8/03/2019 but deemed filed on the 9/3/2020. It should be noted that, the Cross-Appeal was filed by the 2nd – 4th Respondents in the main appeal.
Now, the 2nd – 4th Respondents/Cross-Appellants’ filed a Brief of Arguments in support of the Cross-Appeal. The said Cross-Appellant Brief of Arguments was filed on the 8/3/2019 but deemed filed on the 09/3/2020. Therein, two (2) issues were raised for determination, as follows:
1. Whether on the basis of the claims/reliefs of the Plaintiff before the trial Court, the Honourable Trial Court was right to have assumed jurisdiction and entertained the said claim/reliefs putting into consideration the provisions of Section 251(1) -(4) of the Constitution of the Federal Republic of Nigeria, 1999.
(Ground 1 of Amended Notice of Cross-Appeal).
2. Whether the claims of the Plaintiff at the trial Court in this suit disclosed any reasonable cause of action against the 2nd – 4th Respondents/Cross-Appellants to enable them to be joined as parties and Judgment delivered thereof, against them.
(Ground 2 of Amended Notice of Cross-Appeal).
The 1st Cross-Respondent also raised two issues for determination as follows:
1. Whether the Federal High Court by virtue of Section 251 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) has jurisdiction to entertain the 1st Cross-Respondent’s suit?
(Ground 1).
2. Whether there was a reasonable cause of action against the 2nd – 4th Cross-Appellants?
The Appellant/2nd Cross-Respondent did not file any Brief in response to the Cross-Appeal.
Now, I have carefully studied the grounds for the Cross-Appeal and the issues distilled therefrom. Having thus considered, I am of the view that Ground 1 of the Amended Notice of Cross-Appeal and issue one (1) distilled therefrom, are the same as Ground one(1) in the Amended Notice of Appeal and issue one (1) raised therefrom in the main appeal. A careful consideration will also reveal that the arguments of counsel thereon are the same in substance and scope as it relates to the exclusive jurisdiction of the Federal High Court under Section 251(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). I need not repeat same here.
It should be noted that the 1st Cross-Respondent was the Plaintiff in the Court below. I had resolved in issue one(1) of the main appeal, that the Plaintiff/1st Cross-Respondent’s claim before the trial Court, which border on the tort of negligence arising from the alleged reckless driving of the vehicle of the Cross-Appellants, falls outside the jurisdiction of the Federal High Court. On that note, I adopt and rely on my reasoning and conclusion on issue one (1) in the main appeal, and consequently hold that the claims of the Plaintiff/1st Cross-Respondent having fallen outside the jurisdiction of the Federal High Court as donated by Section 251(1) (a) – (s) of the 1999 Constitution, the Court below, had no jurisdiction to hear and determine same. I therefore resolve issue one(1) of the Cross-Appeal in favour of the Cross-Appellants.
Issue two (2) raised in the Cross-Appeal, questions whether, the suit of the Plaintiff/Cross-Respondent before the Court below, disclosed any reasonable cause of action against the Cross-Appellants. In resolving this issue, let me remind myself that, I had resolved in both issues one (1) in the main appeal, and one (1) in the Cross-Appeal that, the Plaintiff’s/1st Cross-Respondent’s suit before the trial Court was incompetent and that the Court therefore, lacked the requisite jurisdiction to hear and determine same. Having thus resolved, this Court lacks the competence and consequently the jurisdiction to determine on issue two (2). Moreover, to delve into the determination of the said issue two (2), will not yield any utility value to any of the parties. See Charles Oke & Anor v. Dr. Rahman Mimiko & Ors (2013) All FWLR (Pt. 693) 1853, UBA Plc. v. Dana Drugs Ltd. (2018) LPELR – 44103 (CA), Action Congress v. INEC (2007) LPELR – 8988 (CA) and Mbachu v. Anambra – Imo Rivers Basin Development Authority, Owerri (2006) All FWLR (Pt. 342) 1482 at 1497.
Now, having thus resolved it is clear to me that, having resolved issue one (1) in favour of the Cross-Appellants, the Cross-Appeal has merit. It is hereby allowed. Consequently, I order that the judgment of the Federal High Court in Suit No: FHC/ABJ/CS/221/2000 be, and is hereby set aside. The Suit No. FHC/ABJ/CS/221/2000 subject of this Cross-Appeal, is hereby struck out.
The parties are to bear their respective costs.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the opportunity of reading in draft the lead judgment just delivered by my learned brother, Haruna Simon Tsammani, JCA.
I agree with the findings, reasoning and conclusion reached in resolving all the issues distilled for determination in both the main appeal and the cross-appeal. I also abide by the consequential orders made therein.
I make no order as to costs.
DANLAMI ZAMA SENCHI, J.C.A.: I was privilege to read in draft before now the lead judgment of my learned brother, HARUNA SIMON TSAMMANI, JCA just delivered and I agree with the conclusion reached therein. The lead judgment has succinctly and painstakingly resolved all the issues raised in this appeal. I have nothing to add but rather indorse the findings in the lead judgment as mine. Thus, this appeal has merit and it is allowed by me as well.
Accordingly, the judgment of the Federal High Court sitting in Abuja in suit no. FHC/ABJ/CS/221/2000 delivered on 7/11/2006 by B.F.M NYAKO, J. is hereby set aside and suit no. FHC/ABJ/CS/221/2000 is hereby struck out.
I make no order as to costs.
CROSS-APPEAL
I have had the opportunity of reading in draft the lead judgment in the Cross-Appeal by my learned brother, HARUNA SIMON TSAMMANI, JCA just delivered. I agree with the lead judgment that the Cross-Appeal has merit and it is allowed by me. Accordingly, the decision of the Federal High Court sitting in Abuja in suit no. FHC/ABJ/CS/221/2000 delivered on 7/11/2006 by B.F.M. NYAKO, J., is hereby struck out.
Appearances:
George Ukaegbu, Esq, with him, Emmanuel Akuma, Esq, For Appellant(s)
Ifeanyi M. Nrialike, Esq, with him, Obunike Ohaegbu, Esq, for the 2nd – 4th Respondents/Cross – Appellants.
The 1st Respondent not represented. For Respondent(s)
