Sokoto State Government Of Nigeria & 2 Ors V Kamdex Nigeria Limited (2007)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, JSC

The respondent in this appeal was the plaintiff at the trial Lagos State High Court of Justice where he instituted three suits, LD/3843/1999, LD/3844/1999 and LD/3846/1999, claiming various sums of money from the 1st and 2nd appellants who were the defendants in the suits. After hearing the parties, judgment was entered for the plaintiff/respondent in the three suits which gave rise to three separate appeals numbers CA/L/108/2001, CA/L/109/2001 and CA/L/110/2001 in the Lagos Division of the Court of Appeal by the 1st and 2nd defendants/appellants who were not satisfied with the judgments of the trial High Court. These appeals were consolidated and heard by the Court of Appeal which in its judgment delivered on 22-1-2004 dismissed the appeal. Still aggrieved with the judgment of the Court of Appeal, the defendants/appellants have now appealed to this court. In the 1st and 2nd appellant’s brief of argument, the following three issues were formulated from the grounds of appeal:

“(i) Whether a panel of Justices different from the panel of Justices that heard argument from the parties, examined the Record of Appeal, asked vital questions on the 5th November, 2003 can deliver a valid judgment in this appeal on the 22nd day of January 2004

(ii) Whether in view of the circumstances of this suit and the arguments canvassed by the 1st and 2nd appellants on the issue of jurisdiction in their Brief of Argument, the Lagos High Court has jurisdiction to entertain the actions and whether Court of Appeal is not bound to make specific pronouncement on the challenged jurisdiction of the Lagos High Court to hear and determine this suit

(iii) Whether service of the Originating Processes can be properly effected on the 1st and 2nd appellants (Sokoto State Govern-ment of Nigeria and its Attorney General and Commissioner for Justice) in Lagos to wit:-

7, Adeola Odeku Street Victoria Island, Lagos and an adjunct to same whether the said allegedly effected service at 7 Adeola Odeku Street Victoria Island, Lagos ought not to be set aside in view of the contradiction in the actual address on which service was effected and the fact that the 2nd appellant is a natural person

In the brief of argument filed by the plaintiff now respondent in this appeal, three issues were identified as in the appellant’s brief of argument but differently framed to suit the respondent’s case. The issues are:

“(i) Whether the judgment of the Court of Appeal delivered on January 22, 2004 by their lordships coram: Suleiman Galadima, P.O. Aderemi and C.M. Chukwuma-Eneh JJCA became invalid by reason of the fact that Honourable Justice J.O. Ogebe who participated at the hearing of the appeal was not on the panel that delivered the judgment.

(ii) Whether the service of the Originating Processes in the suits leading to this appeal on the appellants at their liaison office in Lagos is valid service in law.

(iii) Whether the findings, pronouncement and resolution by the lower court of issues 1, 2 and 3 identified by the appellant and issues 1, 2, 4 and 5 identified by the respondents do not finally dispose of the issue of jurisdiction as raised and argued in the lower court.”

The first issue for determination is virtually the same in both the appellant’s and the respondent’s briefs of argument. However before proceeding to consider this issue, it is very important to state what actually happened in the proceedings before the Court of Appeal from 5-11-2003, when the appellant’s appeal was heard in that court, to the 22-1-2004 when judgment in the appeal was delivered. This is because it is the facts that transpired during this period that gave rise to the appellants ground (a) of the grounds of appeal from which this first issue was distilled.

The record of this appeal at page 101 shows that the consolidated appeals numbers CA/L/108/2001; CA/L/109/2001; CA/L/110/2001 and CA/L/111/2001 between the same parties in the present appeal came up for hearing before a panel of Justices of the court below comprising of: Hon. Justice J.O. Ogebe – Presiding Justice Honi Justice P.O. Aderemi – Justice Court of Appeal Hon. Justice C.M. Chukwuma-Eneh –Justice Court of Appeal On 5-11-2003. The record of that day reads: “Mr. A.B. Ogunba with Messrs G.C. Duru and O.F. Efunkomaiya for 1st and 2nd appellants. Mr. R.A. Abijo for 3rd appellant. Mr. R. Tarfa SAN with J. Odubela, A. Malgwi & Mrs. D. Adamu-Eteh for the respondent. Court: Only appeals No. 108, 109 and 110 will be taken Appeal 111 is adjourned to abide the result of the consolidated appeals. Mr. Ogunba: We filed the brief on 4/7/01. We also (sic) reply brief on 10/5/02. I adopt them. I urge the court to allow the appeal. Mr. Abijo: I filed 3rd appellant’s brief on 16/10/01 and reply brief on 9/7/02. I adopt them. I urge the court to allow the appeal. Mr. Ricky Tarfa: We filed brief in respect of appeal by 1st and 2nd appellants on 14/2/02. I adopt it. The appeal is against the refusal to set aside the order. I urge the court to dismiss the appeal. As regard 3rd appellant appeal, we filed brief on 2/5/02. There is also a preliminary objection and 3rd appellant filed a reply. I urge the court to uphold the preliminary objection. Court: The appeal is adjourned to 22/1/04 for Judgment. (SGD) J.O. Ogebe Justice, Court of Appeal”

The record of this appeal at page 102 and subsequent pages does not contain any court proceeding to show that the court sat on 22-1-2004 to deliver the judgment in the appellants’ appeal adjourned to that date. However, pages 102 to 129 of the record contain the lead judgment of Aderemi JCA (as he then was) in appeal No CA/L/108/2001 between the parties in this appeal supported by the concurring judgments of Suleiman Galadima JCA and C.M. Chukuwuma-Eneh JCA (as he then was) unanimously dismissing the appellants’, appeal. The panel of Justices shown on the face of the leading judgment at page 102 of the record as having heard the appeal and delivered the unanimous judgment is made up of S. Galadima JCA, P.O. Aderemi JCA (as he then was), and C.M. Chukwuma-Eneh JCA (as he then was). This appeal number CA/L/108/2001, the judgment in which was delivered by the Hon. Justice Galadima led panel, was one of the consolidated appeals heard and specifically adjourned to 22-1-2004 for judgment by the Hon. Justice Ogebe led panel. The record of this appeal also shows that Hon. Justice Galadima who did not participate in the hearing of appeal No.CA/L/108 with Hon. Justice Ogebe, Aderemi and Chukwuma-Eneh on 5-11-2003, actually wrote and delivered-a concurring judgment to Hon Justice Aderemi’s lead judgment delivered on 22-1-2004. Meanwhile, the record of the appeal does not contain the concurring or dissenting opinion as the case may be of Hon. Justice Ogebe JCA who presided at the hearing of the appellants’ appeal on 5-11 -2003. From these rather glaring undisputed facts in the record of this appeal, the real question to be determined from the first issue arising for determination, is whether or not the judgment of the court below delivered on 22-1-2004, in the circumstances is valid. Learned counsel to the appellants referred to Sections 247(1) and 294(2) of the 1999 Constitution and argued that the combined effect of the sections, is that the panel of Justices of the Court of Appeal that heard an appeal, shall be the same panel that will deliver their opinion in writing as it relates to the judgment of any particular suit; that the absence of the written opinion of Hon. Justice James O. Ogebe in the judgment of the Court of Appeal delivered on 22-1-2004, invalidates the said judgment and makes it a nullity, as the parties were not ‘fairly’ heard because a judge who did not ‘hear’ them made a pronouncement against them resulting in denial of fair hearing enshrined in chapter 4 of the 1999 Constitution.

The case of Madukolu & Ors v. Nkemdelim & Ors (1962) 2 SCNLR 34 was relied upon in support of this argument. Learned counsel further referred to a number of cases such as, Queen v. Governor-In-Council W.R. Exparte Laniyan Ojo (1962) 1 All NLR 147; Mai Rai v. Bauchi N.A. (1957) NNLR 31; Nana Tawiah v. Kwesi Ewudzi 3 WACA 52; Otwiwa & Anor v. Kwaseko 3 WACA 230; Chapman v. C.F.A.O. 9 WACA 181; Orugbo v. Una (2002) 16 NWLR (Pt.792) 175 at 199, (2002) 13 SCM 153 and particularly the recent decision of this court in Ubwa v. Tiv Traditional Council (2004) 11 NWLR (Pt. 884) 427, (2004) 5 SCM, 146 which is on essentially similar facts with the present case, and submitted that once an appellate court comes to, the conclusion that there is a breach of the principles of fair hearing, the proceedings cannot be salvaged as they are null and void ab-initio. On the decision of this court in Shuaibu v. Nigerian Arab Bank Ltd (1998) 5 NWLR (Pt.551) 582 heavily relied upon by the learned counsel to the Respondent in the Respondent’s brief of argument, learned counsel observed that that decision is clearly distinguishable with the decision of this court in Ubwa v. Tiv Area Traditional Council (supra) as the facts and circumstances arriving at the decisions in the two cases are not the same. Learned counsel concluded his argument by urging this court to allow the appeal on this issue, set aside the judgment of the court below of 22-1-2004 for having been delivered contrary to the provisions of the Constitution.