UMAR v. SUN MICRO SYSTEM LTD & ORS (2020)

UMAR v. SUN MICRO SYSTEM LTD & ORS

(2020)LCN/15728(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, August 25, 2020

CA/A/761/2018

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

KARAMA UMAR APPELANT(S)

And

1. SUN MICRO SYSTEM LTD 2. THE MINISTER OF THE FEDERAL CAPITAL TERRITORY 3. DEPARTMENT OF DEVELOPMENT CONTROL RESPONDENT(S)

RATIO:

THE ISSUE OF DENIAL OF FAIR HEARING

The issue of denial of fair hearing to the appellant did not arise, because the trial Court bent backwards several times to accommodate the defendants who pretended to Champion the purported interest of the appellant; it simply did not see any good reason to join the appellant as a party, as the purported interest amounted to little or next to nothing, in view of the needlessness of the joinder of the appellant in the circumstances of the case.It is for these reasons that I now resolve the sole issue for determination if favour of the 1st respondent, against the appellant.

HOW A TRIAL IS TO BEDUCTED

Within the context of Section 36 CON(1) of the 1999 Constitution, a trial is said to have been conducted fairly, if it is conducted in such a way as to ensure that justice is done to all parties, within permissible legal norms. The essence is that both sides be given an opportunity to present their respective cases, without let or hindrance of any kind, with each party having the opportunity, from the onset, of knowing what the other side has in preparation against it, so that it also can respond as it deems fit and proper in reaction; see Mohammed v. Olawunmi& ORS (1990) 2 NWLR (Pt.133) 458 @ 485 B-C; Duke v. Govt. of Cross River State &Ors. (2013) 8 NWLR (Pt.1356) 347 @ 366 C; Pam & Anor. v. Mohammed (2008) 16 NWLR (Pt. 1112) 1 @ 48 E-F; and Denloye v. Medical and Dental Practitioners Disciplinary Committee (1968) LPELR- 25526 (SC). MOHAMMED MUSTAPHA, J.C.A.

ADHERING STRICTLY TO THE PRINCIPLE OF FAIR HEARING

It is necessary in all judicial or quasi judicial proceedings to adhere strictly to the principle of fair hearing, as provided in Section 36 (1) of the 1999 Constitution, as amended; bearing in mind that where there is an allegation of denial of fair hearing in a trial, the whole proceeding is brought into question.
Having said that, to be entitled to the right of fair hearing, a party has to have an interest in the suit. MOHAMMED MUSTAPHA, J.C.A.

MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of the Federal Capital Territory, Abuja; coram: Hon. Justice D. Z. Senchi, delivered on the 9th of July, 2012, in Suit No FCT/HC/CV/1938/09.

Facts in Brief:
The appellant claimed to be unaware of the suit when it was filed before the trial Court, by the 1st respondent; a motion for the joinder of the appellant filed on the 26th of August, 2009, by the 2nd and 3rd respondents was withdrawn and struck out, thus effectively, putting paid to the joinder of the appellant as a party to the suit.

The claim in the writ of summons, at page 2 of the record of appeal is for the following:
1. A declaration that the plaintiff is the holder of the statutory Right of Occupancy over Plot 252 Katampe Extension District, Cadastral Zone B19 FCT Abuja.
2. A declaration that the plaintiff s statutory Right of Occupancy over Plot 252 Katampe Extension District, Cadastral Zone B19 FCT Abuja is valid and subsisting.
3. A declaration that the plaintiff is entitled to the Certificate of Occupancy over Plot 252 Katampe Extension district, Cadastral Zone B19 FCT Abuja.
4. An order compelling the 1st defendant to issue a Certificate of Occupancy for Plot 252 Katampe Extension District, Cadastral Zone B19 FCT Abuja.
5. An order of perpetual injunction restraining the defendant from unlawfully or illegally invalidating, terminating or revoking the plaintiff’s statutory Right of Occupancy over Plot 252 Katampe Extension District, Cadastral Zone B19 FCT Abuja.
6. Upon the said plot 252 Katampe Extension District, Cadastral Zone B19 FCT Abuja.
7. The sum of N50,000,000.00 being damages suffered by the plaintiff by reason of the defendants’ trespass and Constant unpermitted entry into the said plot 252 Katampe Extension District, Cadastral Zone B19 FCT.

Dissatisfied with the decision of the trial Court in favour of the 1st respondent, the appellant appealed to this Court pursuant to an Order of this Court, granting her leave to appeal as an interested party, granted on the 14th of June, 2018. The grounds of appeal as contained in the notice of appeal filed on the 25th of June, 2018, at pages 243 to 245 of the record of appeal is as follows:
Ground One:

The learned trial judge erred in law and thus acted without jurisdiction, when he adversely determined the appellant’s right to the subject property at plot 252 Katampe extension district Cadastral zone B19 FCT, Abuja, without joining her as a party to the suit; and thereby occasioned a miscarriage of justice.
Particulars:
1. The record of appeal confirms the existence of an abandoned attempt by the 2nd and 3rd respondents to join the appellant as a party to the suit at the lower Court.
2. There was sufficient evidence before the lower Court that the appellant’s interest on the subject property would be affected by the proceedings/judgment.
3. Being the actual owner of the subject property at plot 252 Katampe extension district, Cadastral zone B19 FCT/Abuja, with statutory right of occupancy, the appellant’s interest was prejudiced by the Court, when same was unlawfully transferred to the 1st respondent.
4. The appellant is a necessary party whose interest has been adversely affected and who ought to have joined as a party to the suit against which this appeal is lodged.
Ground Two:
The learned trial judge erred in law and consequently violated the appellant’s right to fair hearing, when being conscious of the existence of her interest in the subject property at plot 252 Katampe extension district Cadastral zone B19 FCT Abuja he deprived her of same by the judgment delivered on the 9th July, 2012, suit No FCT/HC/CV/1938/09, without affording her an opportunity to be heard on same and thereby occasioned a miscarriage of justice.
Particulars:
1. Fair hearing is a constitutional right that underlines the adjudicatory power of the Court to determine my case.
2. Had the Court afforded the appellant an opportunity to be heard by joining her to the suit, its resolution on the case would have been different.
3. The appellant had no knowledge of the pendency of the suit and the proceedings conducted therein, but there was evidence before the Court indicating that her interest would be affected.
4. Proceeding conducted and judgment delivered by the Court in the absence of the appellant is a nullity.

From these grounds, a sole issue for determination was formulated on behalf of the appellant by Ahmed Raji Esq., SAN, in the brief filed within time on the 18thday of September, 2018 as follows:

Given the appellant’s interest on Plot 252 Katampe Extension District, Cadastral Zone BI19 FCT Abuja, as demonstrably disclosed throughout the gamut of processes filed before the trial Court, whether it was right for the trial Court to determine the said interest against the appellant, when she was not made a party to the suit.

Hakeem Kareem Esq., of counsel for the 1st respondent formulated a sole issue of his own in the brief filed on the 7th of November, 2018 as follows:
Whether given the facts and circumstances of this case, the judgment of the lower Court delivered on the 19th of July, 2012 can be impugned on ground of non joinder of the appellant.

The 2nd and 3rd respondents were served with the appellant’s brief on the 21st of September, 2018, but chose not to file any process in response.

The 1st respondent filed a Preliminary Objection on the 25th of June, 2018, which was argued at pages 3 to 7 of the brief; the objection will first be resolved, one way or the other before proceeding to the substance of the appeal, if need be.

The grounds of the objection are that:
a) The grounds ofappeal do not relate to the judgment appealed against.
b) The grounds do not attack the ratio decidendi of the judgment appealed.
c) The order of the Court granting leave to appeal was not filed together with the notice of appeal.
d) There is no complaint against the appellant at the lower Court.
e) The purported interest of the appellant in the subject matter of the appeal has been extinguished by the notice of revocation dated 28th October, 2013; and
f) Third party interest has accrued in the subject matter of the appeal.

It is submitted for the 1st respondent that no part of the judgment showed the Court made a finding refusing to join the appellant as a party, as such the two grounds did not relate to the findings of the trial Court; learned counsel referred the Court to Edjekpo v. Osia (2007) 8 NWLR part 1037 page 635 and Cooperative & Commerce Ban v. Ekperi (2007) 3 NWLR part 1022 page 493.

That also the grounds of appeal do not attack the ratio decidendi of the decision of the trial Court because the two grounds do not attack the findings of the trial Court, but only raised issues outside the judgment; this Court was referred to Nwankwo v. Ecumenical Development Cooperative Society (2007) 5 NWLR part 1027 page 377.

It is further submitted that the 1st respondent’s claim at trial were directed at the 2nd and 3rd respondents, without any complaint against the appellant; and so the absence of the appellant will not affect the proper determination of the dispute; the Court was referred to Dantsoho v. Mohammed (2003) 6 NWLR part 817 and Att. Gen. of The Fed. v. Ajayi (2000) 12 NWLR part 682 page 509.

That also the 1st respondent has sold and transferred its interest over the property to a third party after the judgment of the trial Court on the 9th of July, 2012, as a result of the appellant’s inordinate delay in filing its appeal. Evidence of which are contained in the counter affidavit of the 1st respondent of the 13th of May, 2018 in response to the Motion on Notice of the 7th of October, 2016.

Learned counsel urged this Court to uphold the preliminary objection and dismiss the appeal for incompetence.

In response, it is submitted for the appellant that the 1st respondent is mistaken as to the peculiar nature of this appeal and the complaint ofthe appellant. That the complaint of the appellant is that the entire trial is tainted by a lack of fair hearing to the appellant; the complaint, it is contended is about the procedural quality of the proceedings as it applies to all the parties.

That a question of procedural inequity leading up to a lack of fair hearing is not one that broaches the merits of the judgment, to determine.

It is further submitted for the appellant that it has never been necessary for an appellant to file the order granting him leave to appeal to the notice of appeal. That the requirement of the law was complied with, without the necessity of filing the order as contended.

That also the contention that the appellant’s interest was extinguished by a notice of revocation issued by the 2nd and 3rd respondents is an admission against the interest of the 1st respondent, because it shows that the appellant had an interest, which could be extinguished, but was not heard before the subject, matter was determined; learned counsel further submits that the third party interest has to be set aside; the Court was referred to Ashiru v. Olukoya (2006) 11 NWLR part 990 page 1.
Resolution of The Preliminary Objection:
The constitutional guarantee for the right to fair hearing in Section 36 (1) of the 1999 Constitution, (as amended) has its origins in the common law principles of natural justice, i.e. audi alteram partem and nemo judex in causa sua; essentially meaning that both sides should be heard, so that no man is condemned unheard.
What this means is that the parties must be given equal opportunity to present their cases to the Court, and no party should be given more opportunity or advantage in the presentation of his case, in preference to the other; see Inakoju v. Adeleke (2007) 4 NWLR (Pt.1025) 425 @ 618 E – F.
The appellant’s complaint in this appeal is that the proceedings at trial are tainted by the lack of an opportunity to be heard, on his part; which would then require the determination of whether procedurally, the rights of all parties to present their cases fairly and equally, without let or hindrance, has been observed in accordance with the letter of the law.
It is important to note that a complaint that the proceedings at trial were unfair, by reason of denial of an opportunity to be heard, is distinct from a question of merit of the case, as contended for the 1st respondent, because any complaint as to fair hearing, especially when it affects the whole proceedings, as in this case, cannot be whittled down only to the merit of the decision; see Idakwo v. Ejiga (2002) 13 NWLR part 783 at 156.
Since the grounds of appeal, as contained in the notice of appeal are clearly complaints, only of a breach of the appellant’s right to fair hearing, as a consequence of the failure to join the appellant, one cannot help but agree with learned senior counsel that the merits of the decision and the ratio decidendi of the case are the least of the appellant’s worries in this appeal; because the question of fairness of a proceeding is quite separate from the question of the merit of the trial Courte decision.
“…when a question of fairness of hearing arises in a case the only purpose that could be served by the appellate Court considering… issues of merit of a case… is to see whether the result would be have been the same even if the breach of the principle of fair hearing had had not occurred…where it would be a matter of speculation whether the same decision would have been arrived at, had such a hearing not been tainted by unfairness taken place, an inquiry into the merits would be a futile exercise, I would even go as far as saying that an unfair method cannot produce a fair result.”; IDAKWO V EJIGA supra.”

In regard to the complaint of failure to attach the order of this Court granting leave to appeal to the notice of appeal, it is important to say, from the onset, that the Rules of this Court do not require the filing of the order grating leave along with the notice of appeal, as contended for the 1st respondent. What Order 6 Rule 5 of the Court of Appeal Rules 2016 requires, upon obtaining leave is to file notice of appeal within the time prescribed.
In this case, leave was sought and obtained on the 14th of June, 2018, see pages 248 to 249 of the record of appeal; and the notice was filed on the 25th of June, 2018, in clear compliance with the rules of Court. To insist on filing the order granting leave, along with the notice of appeal, is akin to standing both law and common sense on their respective heads.

It is for these reasons that the preliminary objection is over ruled and dismissed as a consequence; I would now proceed to determine the substance of the appeal. The issue formulated on behalf of the appellant suffices for that purpose:
Given the appellant’s interest on plot 252 Katampe Extension District, Cadastral Zone BI19 FCT Abuja, as demonstrably disclosed throughout the gamut of processes filed before the trial Court, whether it was right for the trial Court to determine the said interest against the appellant, when she was not made a party to the suit.

It is submitted for the appellant on the sole issue that the appellant has a statutory right of occupancy in the property in dispute known as plot 252 Katampe Extension District, Cadastral Zone B19 FCT Abuja,, although the appellant was not made a party to the suit, and this interest was brought to the attention of the Court by the 2nd and 3rd respondents when they presented a certificate of occupancy issued to the appellant, at page 55 of the record, a survey plan, at page 56, a letter of approval in favour of the appellant when they cause a motion on notice to be filed on the 26th August, 2009, at page 34 of the record, seeking an order joining theappellant.

That also in their statement of defense, the defendants, now 2nd and 3rd respondents disclosed the interest of the appellant, thus putting the Court on notice as to the subsistence of the appellant’s right to the property in dispute and the need to join her as a party.

Learned counsel submitted that it is clear from these that the trial judge had notice of the appellant’s vested interest in the property, yet failed to give the appellant the opportunity to be heard, notwithstanding the Court’s inherent powers to join parties in such cases, even if there is no pending application.

That the trial Court had knowledge of the fact that there existed a right which would be affected by the judgment, if the affected person was not joined as a party to the suit; and the Court’s attention was drawn to the need to join the appellant by counsel at pages 193 and 218of the record, yet the trial Court failed, and thereby deprived the appellant her statutory right in the property in dispute without giving her an opportunity to be heard; learned counsel referred the Court to Ika LGA v. Mba (2007) 12 NWLR part 1049 page 674, Olaseni v. Olaseni (2010) 5 NWLR part 1187 page 225 and Ekpeto v. Wanogho (2004) 18 NWLR part 905 page 394.

Learned senior counsel further submits that jurisdiction is the livewire of any suit, and can be raised at any point in time; the Court was referred to Att. Gen. of The Fed. v. Guardian Newspapers Ltd. (1999) 9 NWLR part 618 page 187 and Shelim & Anr. v. Gobang (2009) All FWLR part 1866 at 1877.

That the Court’s failure in this regard is against the right to fair hearing of the appellant, and therefore breaches her fundamental right as protected by Section 36 (10) of the Constitution as amended.

In response it is submitted for the 1st respondent that non joinder of a party cannot be fatal, if the suit can be effectively settled in his absence; learned counsel referred the Court to Att. Gen. of The Fed. v. Ajayi (2000) 12 NWLR part 682 page 509; and that in this case there is ample evidence of the participation of the 2nd and 3rd respondents in the proceeding at the lower Court, as they supported and defended the interest of the appellant, by filing a statement of defense challenging the claims of the 1st respondent, and in support of the appellant.

That the 2nd and 3rd respondents have all the fact and documents needed to defend the interest of the appellant at the trial Court without joining the appellant, and so the issue could easily be resolved at trial without the appellant.

That also from the motion for joinder, the appellant must be aware of the suit at the lower Court, because the appellant’s document of title was attached to the motion as exhibit; learned counsel referred the Court to Tsokwa v. United Training Company (2012) 12 NWLR part 782 page 437.

Learned counsel also submitted that the 2nd and 3rd respondents were given the opportunity at trial to defend their case in support of the appellant, having been given the opportunity to defend the appellant they cannot be heard to complain of lack of fair hearing; the Court was referred to Amasike v. Registrars Commission Corporate Affairs Commission (2006) 3NWLR part 968 page 462.

That the 1st respondent is not obliged to join the appellant whom he does not know, whom he has no complaint against; the Court was referred to Dantsoho v. Mohammed(2003) 6 NWLR part 817 page 457.

Resolution:
Section 36 (1) of the 1999 Constitution as amended provides:
“36(1) 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.”
Within the context of Section 36 (1) of the 1999 Constitution, a trial is said to have been conducted fairly, if it is conducted in such a way as to ensure that justice is done to all parties, within permissible legal norms. The essence is that both sides be given an opportunity to present their respective cases, without let or hindrance of any kind, with each party having the opportunity, from the onset, of knowing what the other side has in preparation against it, so that it also can respond as it deems fit and proper in reaction; see Mohammed v. Olawunmi & ORS (1990) 2 NWLR (Pt.133) 458 @ 485 B-C; Duke v. Govt. of Cross River State &Ors. (2013) 8 NWLR (Pt.1356) 347 @ 366 C; Pam & Anor. v. Mohammed (2008) 16 NWLR (Pt. 1112) 1 @ 48 E-F; and Denloye v. Medical and Dental Practitioners Disciplinary Committee (1968) LPELR- 25526 (SC).
It is necessary in all judicial or quasi judicial proceedings to adhere strictly to the principle of fair hearing, as provided in Section 36 (1) of the 1999 Constitution, as amended; bearing in mind that where there is an allegation of denial of fair hearing in a trial, the whole proceeding is brought into question.
Having said that, to be entitled to the right of fair hearing, a party has to have an interest in the suit. One cannot be entitled to a right of hearing at large, especially where that person’s interest is not affected by the trial.

At this juncture it is important to have recourse to the claim as contained in the writ of summons, elaborately stated in earlier parts of this judgment, as per page two of the record of appeal. These claims clearly show that none of the reliefs sought, by the1st respondent is against the appellant; that being the case, it is imperative to first determine the propriety or otherwise of the joinder of the appellant.

The question ought to be asked, in the first instance, whether the appellant was a necessary party to the suit, without whom a proper determination of the issues in dispute cannot be made, or better put, is someone who should be bound by the result, and without her the issues cannot be effectually settled; see Ajayi v. Jolayemi (2001) 10 NWLR (Pt. 722) 516.
The answer to that question is clearly in the negative, especially in view of the fact that, the appellant, at that point in time had no interest on the disputed land, having already been allocated a separate land, by the very same 2nd and 3rd respondents, because they found out that the earlier allocation made to her was an error of sorts. This much is clear from exhibit B at page 39 of the record of appeal, which indicated that the appellant was allocated Plot 2154, within Wuse A4 District.
One may ask, what then was the question in the 1st Respondents’ claim before the lower Court? Can that claim be determined without the Appellant being a party? Put differently, did the 1st Respondents make any claim against the Appellant to have made her presence necessary in the proceedings? This Court cannot help but note that there is no single claim against the Appellant in the action filed by the 1st Respondents before the lower Court.
In such circumstances, it would indeed be wrong for the learned trial Judge to have made the Appellant a party to the suit; his decision refusing to join the appellant as party is therefore impeccable in the circumstances.
The joinder of a party to a suit by a Court is dependent on the need or necessity for the party to be joined, on account of impossibility of determination of the issues without him or her as the case may be. It is not enough to want to be joined whimsically, merely on account of perceived interest. The interest has to be real and determinable.

The contention, in reply, that the 2nd and 3rd respondents expressed their inability to defend the rights of the appellant by withdrawing the motion for joinder earlier filed smacks of insincerity on the part of the 2nd and 3rd respondents, who appeared to cry more than the bereaved, even though when they had the chance they literally had to be prodded by the trial Court to participate in the proceedings, climaxing with their failure to file statement of defense, leading the Court to dose the case of the defendants on the 8th of February 2011, because “…the defendants could not open their case for defense; see page 227 lines 15-16 of the record of appeal.

Even though they withdrew the motion for joinder of the appellant, clearly their statement of defense halfheartedly supported the appellant’s purported interest; see paragraphs 2, 3, 4, 5 and 7, of the statement of defense at page 53 of the record of appeal and witness’ statement on oath at page 77 also of the record of appeal.

The issue of denial of fair hearing to the appellant did not arise, because the trial Court bent backwards several times to accommodate the defendants who pretended to Champion the purported interest of the appellant; it simply did not see any good reason to join the appellant as a party, as the purported interest amounted to little or next to nothing, in view of the needlessness of the joinder of the appellant in the circumstances of the case. It is for these reasons that I now resolve the sole issue for determination if favour of the 1st respondent, against the appellant.

Having resolved the sole issue for determination in favour of the 1st respondent, against the appellant, the appeal fails for lack of merit, and it is accordingly dismissed.

Judgment of the trial High Court of the Federal Capital Territory, Abuja; coram: Hon. Justice D. Z. Senchi, delivered on the 9th of July, 2012, in Suit No FCT/HC/CV/1938/09, is hereby affirmed.

STEPHEN JONAH ADAH, J.C.A.: I was availed the benefit of reading in draft the judgment just delivered by my learned brother, Mohammed Mustapha, JCA.

I am in agreement with his reasoning which I adopt as mine, and the conclusion that the appeal is lacking in merit.

I too, do dismiss the appeal and I abide by the consequential order as made in the lead judgment.

MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Mohammed Mustapha, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.

Appearances:

ADEOLA ADEDIPE, ESQ., with him, O.C. OGUNYEMI, ESQ., and OLUWAFEMI DAVES AWE For Appellant(s)

HAKEEM KAREEM, ESQ. for the 1st Respondent

2nd and 3rd Respondents served but not represented. For Respondent(s)