Mallam Garba Yakaje V. Alhaji Gambo Na Haire & Ors (2002)

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SALAMI, J.C.A.

In the proceedings culminating in this appeal, the respondent herein applied ex parte for these reliefs:-

“1. AN ORDER, granting the applicant leave to apply for an order of certiorari to remove, to this Honourable Court, the entire proceedings, rulings and decisions of the 2nd respondent, in case No. ZAC/12x/94: Between Mallam Garba Yakaje v. Alhaji Gambo Na Haire, for being null and void, having been made without fair hearing and without jurisdiction;

2. AN ORDER, transferring case No. ZAC/12x/94: Between Mallam Garba Yakaje v. Gambo Na Haire, pending before the 2nd respondent, to any other Magistrate Court in Zaria, on ground of lack of jurisdiction, bias, and lack of fair hearing;
3. AN ORDER, compelling the Registrar of the 2nd respondent to produce and forward to this Honourable Court, all proceedings decisions and rulings of the 2nd respondent, in case No. ZAC/12x/94 Mallam Garba Yakaje v. Gambo Na Haire, for the purpose of questioning same for being null and void, having been made without fair hearing.
4. AN ORDER, setting aside the order of the Magistrate, given ex parte transferring the possession of the applicant’s land to the 1st respondent, made on 22/4/96, as such issue has never been heard before the Magistrate.”

The ex parte application was supported by “facts verification affidavit” to which only grounds on which the application was sought was attached. The decision and the proceedings sought to be quashed were not considered relevant to the determination of the application and was therefore, not attached to the motion papers. The learned trial Judge, Makeri, J., nevertheless, took the application accordingly and granted all the reliefs set out earlier in this judgment, without putting second and third respondents as well as the appellant herein on notice.

The appellant was naturally dissatisfied with the decision of the court below, and has appealed to this court, on one ground of appeal, from which two issues were distilled in the brief of argument, subsequently filed on his behalf by his learned Counsel. The two issues formulated from the sole ground of appeal read as follows:-

“(i) Whether or not, the lower court was justified in making an absolute order upon an ex parte application without hearing the appellant?

(ii) Was the appellant’s constitutional right to fair hearing not breached?”

Generally, a practice of framing more than one issue from a single ground of appeal, is not encouraged. Both the Supreme Court and this court frown at this practice: Chevron (Nig.) Ltd. v. Onwugbelu (1996) 3 NWLR (Pt. 437) 404, 414; Aniekwe v. Okereke (1996) 6 NWLR (Pt. 452) 60. But the second issue herein raises an issue of fundamental right to fair hearing, which is equally in accord with the natural justice principle of audi alteram partem. Our courts have been exhorted to take issue of breach or threatened breach of the provisions of Chapter IV of our Constitution even though such issues do not arise from any of the adumbrated grounds contained in the relevant memorandum of appeal: Nnamdi Azikiwe University v. Nwafor (1999) 1 NWLR (Pt. 585) 116, 133.

The respondent did not file his brief of argument and the appeal will be heard solely on the appellant’s brief. In considering the appeal, I propose to take both issues together.

It may be apt, at this stage to succinctly state the facts of the case. The appellant lodged a complaint of criminal trespass and mischief against the respondent at the Chief Magistrate’s Court No. 4, Chediya, Zaria. The nature of complaint at the Chief Magistrate Court, was that the respondent had trespassed on the appellant’s farmland and cut down his economic trees. Respondent, after the matter had been reserved for judgment and before the Chief Magistrate delivered his judgment, sought for in the High Court 1, Zaria, and was granted the reliefs which resulted in the instant appeal.

The prayer for leave to apply for an order of certiorari as well as order, quashing the decision of the Chief Magistrate were argued, considered and granted in the application for leave to apply for an order of certiorari without respondent filing a motion on notice, whereby the appellant would be placed on notice not to talk of offering him opportunity to proffer a defence thereto.

At the hearing of the appeal, both parties had no appearance and the appeal was deemed argued on the brief filed, the court having satisfied itself that both parties had been served.

It was contended in the appellant’s brief that when leave is granted the respondent is required to put the appellant on notice by serving a motion on notice on him. The said motion, learned Counsel further contended should be entered for hearing within 14 days.