Alhaji Dabo Kankara V. The Commissioner of Police, Katsina State & Ors (2002)

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MOHAMMED, J.C.A. 

This is an Appeal against the judgment of the Katsina State High Court of Justice, sitting at Katsina and delivered by Abdullahi Yusuf, J., on 14/7/94, striking out an action brought before that court, by an Originating Summons dated 16/7/93, taken out by the Appellant, as the Plaintiff in the following terms:-

“Originating Summons
Let all the Defendants in this Suit within eight days, after the service of this Summons on them, inclusive of the day of such service cause an appearance to be entered for them to this Summons, which is issued upon the application of Alhaji Dabo Ibrahim Kankara of Katsina, who claims to be the rightful owner of the sum of Ninety-Seven Thousand, Seven Hundred and Thirty One Naria Twenty-five kobo (N97,731.25k), which the Defendants forcibly collected from him on the 22nd day of April, 1993, for the determination of the following questions:
(a) Whether or not the Defendants were right when they in the (sic) cause of investigating a complain laid to them by one Bala Shuaibu Sanlawa, that the Plaintiff conspired with some other people to cheat the Katsina State Government, arrested, detained and took the Plaintiff barefooted, under the terrible sun heat, with only a singlet and trouser on him, to the Union Bank, Nagogo Road, Katsina, on the 22nd day of April, 1993, and (sic) force him to withdraw the sum of N97,731.25k from his personal account and give to them in refund of a contract money awarded to a limited liability company (Himma Pharmaceautical Chemists Ltd.) to which the Plaintiff is just an employee.
(b) Whether or not the Defendants were right when they (sic) refuse to return the sum referred above to the Plaintiff, after withdrawing the case they filed in the upper Area Court No. 1 Katsina, on the information revealed to them by Bala Shuaibu, despite repeated demands by the Plaintiff’s solicitors.
Where of the Plaintiff claim the following reliefs and remedy:-
1. An Order answering all the above questions in the negative that the Defendants were wrong in acting the way they did.
2. That the Defendants should pay back the sum (sic) N97,731.25k) to the Plaintiff.
3. A written apology be written by the Defendants to the Plaintiff for embarrassing him without just cause.”

In support of this Originating Summons was a 19 paragraph Affidavit deposed to not by the Plaintiff/Appellant, but by a Litigation Secretary to his learned Counsel. The Respondents who were the Defendants in the action, also deposed to a Counter-Affidavit of 12 paragraphs in their joint defence to the action.

After granting the parties a full hearing in support of the facts deposed in their respective Affidavit in support of the claims of the Plaintiff/Appellant and the Counter-Affidavit in support of the defence of the Respondents as Defendants, the learned trial Judge adjourned the case for judgment to be delivered on 14/7/94. In that judgment delivered on 14/7/94, the learned trial judge after carefully examining the claims of the Appellant in the Originating Summons, the Affidavit evidence in support of these claims and the joint Counter-Affidavit of the Respondents containing evidence of their defence to the action, came to the irresistible conclusion that having regard to the nature of the claims of the Appellant, his action ought not to have been brought by way of Originating Summons and consequently refused to go into the merit of the case by striking the same out. Part of that judgment at pages 32 – 33 of the Record reads-
“This type of action is best commenced by way of Writ of Summons which will enable this Court order parties to file Pleadings for proper resolution of issues of dispute. Order 1 Rule 2 provides that a proceeding shall began by writ where the Plaintiffs claim is for relief or remedy for any tort or other civil wrong.
In the circumstances this court does not find it proper for the Plaintiff to come by way of Originating Summons, when it is not solely for determining issue for construction of a written law, or of any instrument made under any written law, and it is not construction of any deed or contract.
I therefore, do not find it necessary to go into the arguments of learned Counsel as the whole action was commenced on wrong footing.”

The Plaintiff now the Appellant, who was not happy with this Judgment had appealed to this court by a Notice of Appeal dated 16/9/94 and filed at the lower court the same day containing two Grounds of Appeal. However, the Appeal appeared to have been abandoned as since the filing of the Notice of Appeal in 1994, no steps were taken by the Appellant to file his Brief of Argument, until after 6 years, when on 28/6/2001, on the application of the Appellant for extension of time to file his Brief of Argument, this Court extended the time for him to file his Brief of Argument, which was deemed filed the same day. Although this Brief was served on the Respondents through their counsel at the Katsina State Ministry of Justice, up to the time this Appeal came up for hearing on 16/4/2002, no Respondents’ Brief of Argument was filed and served on behalf of the Respondents.
Consequently this Appeal was heard on the Appellant’s Brief of Argument alone in the absence of the Respondents who were also duly served for the hearing of the Appeal that day in line with Order 6 Rule 10 of the Court of Appeal Rules, Cap. 62, of the 1990 Laws of the Federation of Nigeria. The two Issues identified in the Appellant’s Brief of Argument for the determination of this appeal are :-

1. Was it proper for the learned trial Judge to proceed to deliver his Judgment, basing same on an issue he raised suo motu without firstly, hearing or affording parties any opportunity to be heard on the issue?

2. Was there any substantial dispute of facts, between the content of the Affidavit in support of the Originating Summons and the Defendants’ joint Counter-Affidavit as to enable the learned trial Judge reasonably or safely conclude that the suit was wrongly commenced?

Relying on the cases of Brown v. Adebanjo (1986) 1 NWLR (Pt.16) 383 at 388 and Sachia v. Kwande Local Government (1990) 5 NWLR (Pt.152) 555, learned Counsel to the Appellant submitted that the lower court acted in error in raising the issue of the wrong procedure adopted in commencing the suit suo motu without affording the parties a hearing before basing its judgment on it. That since the Respondents did not complain on the wrong procedure, they are deemed to have acquiesced to it by virtue of the case of Noibi v. Fikolati (1987) 1 NWLR (Pt.52) 619 at 621.

It seems to me that there is substance in the submission of the Appellant’s counsel on this issue. It is quite clear from the Record of this Appeal that the issue relating to the procedure adopted by the Appellant in commencing his suit by Originating Summons was not raised by the parties in their Affidavit, Further Affidavit, Counter Affidavit or submissions of their learned Counsel before the lower court. The issue emerged for first time in the Judgment of the lower court and was therein raised suo-motu without affording the parties any opportunity of being heard by the court on the issue.

In the first place, it cannot be over-emphasised that this Court and the Supreme Court had times without number, laid it down that when a court raises a point suo-motu as happened in the instant case, the parties must be given an opportunity to be heard on such a point, particularly the party that may suffer some disadvantage or disability as a result of such a point raised suo-motu. See Ajao v. Ashiru (1973) 11 SC 23 at 39 – 40; Kuti v.Balogun (1978) 1 SC 53; Ejowhomu v. Edok-Eter Mandilas Ltd. (1986) 5 NWLR (Pt.39) 1 and Adegoke v. Adibi (1992) 5 NWLR (Pt.242) 410 at 420. This approach will ensure not only that the parties are given a fair hearing, but that justice is seen to haveb been done in accordance with the principle of audi alteram partem rule.

In the second place, the law is well settled that decisions of courts must only be founded on Grounds raised by or for the parties or either of them and in respect of which it has received arguments from or on behalf of the litigants before them. For example in Shittabey v. Federal Public Service Commission (1981) 1 SC 40, Idigbe, JSC, succintly put this position as follows at page 59:
“This Court has on a number of occasions warned against decisions of court being founded on any ground in respect of which it has neither received argument from or on behalf of the litigants before them, nor even raised by or for the parties or neither of them.”
See also Saude v. Abdullahi (1989) 7 SCNJ 216 at 229; (1989) 4 NWLR (Pt. 86) 58.

Similarly, in Chief Ebba v. Chief Ogodo and Anor. (1984) 4 SC 84 at 112, (1984) 1 SCNLR 372 Eso, JSC (as he then was) in dealing with the same principle of law put the matter thus: –
“With utmost respect, it should be plain to the Court of Appeal that when an issue is not placed before it, it has no business whatsoever to deal with it. A Court of Appeal is not a knight errand looking for skirmishes all about the place.”

In the light of all these decisions, I am satisfied that the lower court was indeed in error, in basing its judgment on an issue raised by it suo motu without affording the parties particularly the Appellant, the opportunity of being heard. The matter does not however, end there as there is the more important question of whether, or not a miscarriage of justice had been occasioned by the conduct of the lower court in this respect to justify setting aside its judgment. In this regard, it must be emphasized that it is not every error of law that is committed by a trial court or even appellate court that justifies the reversal of a Judgment. An Appellant, to secure the reversal of a judgment, must further establish that the error of law complained of did in fact, occasion a miscarriage of justice and/or substantially affected the result of the decision. See: Olubode v. Salami (1985) 2 NWLR (Pt.7) 282.