Chief Ekpenyong Okon Effiong II & Ors v. Deno-enuo Bassey Andong Akom & Ors (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OHAMMED DANJUMA, JCA (Delivering the leading judgment)

This is an appeal against the ruling of the Calabar High Court presided over by Hon. Justice Obojor Ogar and delivered on the 5th day of December, 2017. Dissatisfied with the said ruling, the appellants have appealed to this court.

Brief facts of the case

The parties in this appeal have, (it is alleged) been engaged in litigation involving the same land on several occasions which led to the judgment in suit No. 4/1922. Hardings arbitration of 1949 and that of C/25/1950 ended in West African Court of Appeal.

The present action allegedly was filed by the same claimants as in the previous judgments with protracted proceedings. The appellants filed an application to dismiss the suit on the ground of abuse of court process res judicita and the competence of the trial court to interpret the judgment of the court of co-ordinate jurisdiction.

The application was served on the respondents and on the 5th day of December, 2017, the respondents applied for time to react to the appellants’ application which the appellants did not oppose but the learned trial Judge struck out the appellants’ application.

Issues for determination

In the appellants’ brief of argument dated 27th day of March, 2018 but filed on the 10th day of May, 2018, the appellants through their counsel, Chief Onyebueke F. O. KSM) raised the following issues for determination of this appeal:

1. Whether the striking out of the application by the learned trial Judge without hearing from the appellants or counsel who were present in court did not amount to denial of fair hearing.
2. Whether the issue of jurisdiction when raised cannot be determined first and whether the ruling on the said application if in favour of the appellant would not have brought the proceeding in the case to an end.

On the first issue raised for determination, appellants’ counsel Chief Onyebueke F. O. (KSM) submits that by the proceedings on Page 41, it is obvious that appellants’ counsel introduced the purpose of the motion for substitution and other prayers and on page 42 lines 1 to 2 the respondents’ counsel said they were not opposed to the prayer for substitution but were opposed to 2nd and 3rd prayers on the motion paper. That the learned trial Judge granted the prayer for substitution and went ahead to strike out prayers numbers 2 and 3 which are:

2. An order of the court dismissing this suit as an abuse of court’s process having regard to the judgments No: 4/1922, the Arbitration of 1949 and judgment in C/25/1950 which ended at WACA and the plan in that case filed by the present claimants.
3. That suing on the boundaries which formed part of the judgment in 1922 and C/25/1950 this court has no jurisdiction to interpret a judgment of a court of co-ordinate jurisdiction.

Learned counsel to the appellants argued that failure to hear from the appellants in respect to the application to dismiss the suit before striking same out is a violent violation on the constitutional right of fair hearing of the appellants. He commends section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which provides that a person shall be entitled to fair hearing by a court or tribunal.

Learned counsel submits that in the instant case, the court denied the appellants’ fair hearing by striking out their application without hearing from them. He stated that the test of whether there was a fair trial is the impression of a reasonable person who was present at the trial and that the hearing will be regarded as fair where all the parties to the dispute before the court are given opportunity to be heard. He cited the case of Ndukauba v. Kolomo (2005) 12 WRN 32; (2005) 4 NWLR (Pt. 915) 411 at 438 paras. A-D, where it was held thus:

“The test of measuring fairness in the proceedings in the High Court is the impression of a reasonable person who was present at the trial. A hearing can only be fair when all parties to the dispute before the court are given hearing.”

Similarly, learned counsel cited the case of Oyewole v. Akande (2009) WRN 1, where the Supreme Court held:

“The right to fair hearing is fundamental that the court or tribunal hears both sides not only in the case but also on all material issues in the case before reaching a decision which may be prejudicial to any party in the case. It envisages giving parties the opportunity to presenting their cases without let or hinderance from the beginning to the end. Fair hearing is all about fairness, which is the determining factor for the application of natural justice.”