Mbonu V. Wakama (2022)

LAWGLOBAL HUB Lead Judgment Report

EMMANUEL AKOMAYE AGIM, J.S.C.

On 8-2-2010, the appellant herein filed a notice of appeal and commenced Appeal No. CA/PH/494/2010 in the Court of Appeal sitting at Port-Harcourt against the judgment of the High Court of Rivers State delivered on 2-2-2010 in Suit No. PHC/1980/2005 holding that the plaintiff proved her case and granting all the reliefs claimed for by the plaintiff and dismissing the defendant’s counter-claim.

The record of this appeal show that on 26-11-2012, the Court of Appeal reserved its ruling on a motion for stay of execution “to a date to be verified” and adjourned the appeal for hearing to 6-5-2013. On 20-2-2013, the Court issued and caused to be served on the parties, a notice of hearing that indicated the said ruling would be rendered on 21-2-2013. On the said 21-2-2013, the Court of Appeal instead of delivering the said ruling on the application for stay of execution, delivered a final judgment deciding the appeal, holding that the appeal failed, dismissed it and affirmed the judgment of the trial Court.

Dissatisfied with the said judgment of the Court of appeal, the appellant herein on 22-2-2013 filed a notice of appeal against the judgment, commencing this appeal No. SC.462/2013. The briefs filed, exchanged and adopted by the parties herein are as follows: – appellant’s brief, respondent’s and appellant’s reply brief. The appellant’s brief raised the following issues for determination –

1. Whether the dismissal of the appeal of the appellant by the Court below without any hearing of the appeal is a violation of the appellant’s right to fair hearing guaranteed by Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, and therefore rendered the judgment of the Court below delivered on February 21, 2013 in Appeal No. CA/PH/494/2010 a complete nullity?
2. Whether the failure of the Court below to deliver a ruling on the appellant’s motion for stay of execution of the trial Court judgment after hearing the said motion on November 26, 2012 is a violation of the appellant’s right to fair hearing guaranteed by Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, and therefore rendered the judgment of the Court below delivered on February 21,2013 a complete nullity?

The respondent’s brief adopted and argued the two issues for determination raised in the appellant’s brief.

I will determine this appeal on the said two issues raised for determination in the appellant’s brief.

Let me start with issue no. 1.

I have carefully read and considered the arguments in all the briefs on this issue.

Learned counsel for the appellant argued in substance that the judgment of the Court of Appeal deciding the appeal on 21-2-2013, before the date the appeal was fixed for hearing and without having heard the parties on the appeal, violates the appellant’s right to fair hearing and therefore rendered the judgment a nullity. Learned counsel for the respondent conceded to the above argument thusly – “In the instant appeal, the parties filed their written Briefs of Argument and the appeal was fixed for hearing on 6/5/2013. The Appellant’s Motion for Stay of Execution was argued on 26/11/2012 and ruling on same reserved to a date to be notified. The parties were later notified of the ruling which was fixed for February 21, 2013. The Court of Appeal on the said date erroneously delivered judgment on the substantive appeal instead of the Ruling on the Motion for Stay of Execution that was argued by the parties. This judgment delivered before the date fixed for the hearing of the appeal i.e. 6/5/2013 breached the mandatory provisions of Order 18 Rule 9 of the Court of Appeal Rules 2011 and denied the Appellant his right to be heard in oral argument. We therefore concede that the judgment so delivered is a nullity. The case of Chief Bright Onyemeh & Ors V Lambert Egbechuiem & Ors (1996)5 NWLR (pt 448) at 266 is called in aid.”

Since both sides agree on the fact of the error of the Court of Appeal in deciding the appeal without hearing the parties and the law that the legal effect of such error is that the judgment is a nullity, there is no need to belabor that point. Be that as it is, let me restate that all the parties to a dispute must be heard or afforded reasonable opportunity to be heard before the dispute can be validly decided. If the dispute is decided without hearing any or all of the parties or affording them reasonable opportunity to be heard, such a decision is a nullity as it violates the fundamental right of the parties to the dispute given to them by S. 36(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended which provides that – “In the determination of this 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.”

Hearing of an appeal is a mandatory process that must take place. The process is prescribed in Order 18 Rule 9 of the then applicable Court of Appeal Rules 2011 thusly –

“1. Oral argument will be allowed at the hearing of appeal to emphasize and clarify the written argument appearing in the briefs already filed in Court.

2. The Appellant shall be entitled to open and conclude the argument. Where there is a cross-appeal or a Respondent’s notice, the appeal and such cross-appeal or Respondent’s notice shall be argued together with the appeal as one case within the time allotted for one case, and the Court may, having regard to the nature of the appeal, inform the parties which one is to open and close the argument.
3. Unless otherwise directed, forty minutes on each side will be allowed for argument.
4. When an appeal is called and the parties have been duly served with the notice of hearing, but if any party or any Legal Practitioner appearing for him does not appear to present oral argument even though briefs have been fled by all the parties concerned in the appeal, the appeal will be treated as having been duly argued.”

In CHIEF BRIGHT ONYEMEH & ORS V LAMBERT EGBUCHULAM & ORS (1996) 5 NWLR (pt. 448) 25 this Court restated the procedure of the formal hearing of an appeal thusly – “….the practice as sanctioned by the rules in both the Court of Appeal and Supreme Court where briefs are being filed, is that definite hearing notices are sent to the parties or counsel for the hearing of an appeal. At the hearing of the appeal case is called and each side is given one hour to address the Court unless the Court otherwise directs. Counsel are, however, free to adopt and rely on their briefs at the hearing and say nothing else. These procedures are, I must say, strictly observed by the Court because even where briefs have been filed the Court will not normally proceed to hear and decide an appeal merely on the briefs of the parties alone without satisfying itself that hearing notices of the appeal have been duly and properly served on the litigants or their counsel. This procedure has become aware of new authorities relevant to their cases after they might have filed their briefs. And by appearing in Court on the day of hearing, counsel have the opportunity to draw Court’s attention to any new authority. It is also an opportunity for the Court to ask counsel any question it may wish in connection with the case and before arriving at its decision. In other words, appeals are only decided after hearing notices without exception have been duly served on the litigants or their counsel. Where, however, an appeal is called and the parties have been duly served with the notice of hearing, and the litigant or counsel fails to appear to present oral argument even though briefs have been filed by the parties, then the appeal will be treated as having been argued. I must say that this latter procedure did not even apply in this present case. Granted that the parties had filed their briefs, was the appeal itself fixed for hearing after the ruling herein was reserved on 26/2/92? And if so, were the parties or counsel duly served with the hearing notice? The answers are clearly in the negative.”

In this case, this formal hearing never took place as it was aborted by the determination of the appeal before the date it was fixed for hearing.