Hon. Uduimo Itsueli & Anor V. Securities And Exchange Commission & Anor (2016)
LAWGLOBAL HUB Lead Judgment Report
MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE, J.S.C.
Both parties filed similar motions and asked for similar reliefs vis-a-vis the enforcement of the fundamental human rights. On 5th May, 2008, with consent of all the parties the Federal High Court Lagos, consolidated the two suits i.e suit Nos. FHC/L/CS414/08 and FHC/L/CS/430/08. That Court also ordered the main suits and the notice of preliminary objection be taken together and that written addresses be submitted in respect of same. The written addresses were duly adopted on 18/6/2008.
Both applications and written addresses were considered by the Federal High Court the provisions of the Constitution of the Federal Republic of Nigeria as amended were taken into consideration. The relevant averments in various affidavit evidence of both parties were closely analyzed. It was argued that based on the affidavits evidence before that Court, i.e. Federal High Court, the applicants received several notices informing them of the 2nd respondent. The applicants’ admission in Paragraphs 8 and 7 of the supporting affidavits are said to show that the applicants were
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given more than the opportunity of making representations at the 2nd respondents proceedings. The cases of Mimis Limited v. Ote (2005) 14 NWLR (Pt.945) 517; A.G. Rivers State v. Ude and Ors (2006) 6 – 7 SC 131 and Abana v. Obi (2005) 6 NWLR (Pt.920) were cited in support of the submission that a person who has been given the opportunity of being heard but threw away that opportunity cannot be heard to complain of not being given fair hearing.
The learned trial Judge, Federal High Court Lagos, continued to say since having regard to the provisions of Section 289, 295 and 297 of Investment and Securities Act the decision against which the instant suit is aimed at is not find, it was submitted that no cause of action exists in the present circumstance against the respondents particularly that the applicant were accorded several reasonable opportunities on 13th and 14th February, 2008 of being heard but failed to take advantage of same. The filing of the multiple similar applications and that same cannot and is not remedied by rushing to Court to withdraw the earlier action or application, concluded learned SAN. It was therefore submitted that the filing
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of this application before the Federal High Court while an appeal seeking similar prayers on similar grounds was still pending, is an abuse of Courts process.
In his reaction to the applicants motion Chief Idigbe SAN for the Respondents said that the issue for determination is whether having regards to the circumstances of this case, the applicants rights to fair hearing have been breached by the respondents, he then informed the Court that in the administration of the capital market and for the purposes of efficiency, the 1st respondent has been employed to establish committees for the smooth regulation of the matter.
The Federal High Court has this to say:-
“It has therefore been shown from the affidavit evidence before the Court that the applicants were aware of the proceedings before the 2nd respondent and were served with the hearing notices. Instead of participating in the proceedings they walked out of it and so cannot therefore, in my view, be heard to complain of denial of fair bearing. They were given every opportunity to be heard but threw away the opportunity. In the case of Usani v. Duke (2006) 17 NWLR (Pt.1009) 610 it was held
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that Where a party to a suit has been accorded a reasonable opportunity of being heard and in the manner prescribed under the law and for no satisfactory explanation, he fails or neglects to attend, the sitting of the Court, the party cannot thereafter be heard to complain of lack of fair hearing and that where a party is fully aware that his case is going on and voluntarily stops attending Court, he cannot turn around to complain of want of fair hearing…
In the final analysis, I hold that the applicants’ rights to fair hearing have not been breached and that the decisions of the respondents are not a nullity. These two suits must be dismissed they are hereby dismissed.
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