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 –
- 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?
- 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.
- 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.
- Unless otherwise directed, forty minutes on each side will be allowed for argument.
- 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.
This Court has in a legion of cases before it restated the need to hear the parties to an appeal or affording them reasonable opportunity to be heard, before deciding the appeal and that deciding an appeal without the formal hearing of the parties or affording them the reasonable opportunity to be heard violates their fundamental right to fair hearing. In CHIEF BRIGHT ONYEMEH & ORS, V LAMBERT EGBUCHULAM & ORS. (1996) 5 NWLR (pt. 448) 255 after briefs of argument had been filed by parties, the Court of Appeal gave judgment in the appeal without hearing the appeal formally and affording the parties the right to be heard. This Court declared the said judgment null and void and set it aside for the reason of lack of fair hearing. KUTIGI, JSC (as he then was), delivering the leading judgment of this Court stated at P.265 that: – “In the instant case, the Court below did not only fail to rule on the preliminary objection as to the competence of the appeal but proceeded suomotu to decide the appeal without hearing the parties. A Court of law deciding a case without hearing the litigants? That is doubtlessly outrageous. It is fundamental defect to adjudication and I so hold.”
At page 266, His Lordship, further stated that: – “Justices in the Court of Appeal and the Supreme Court do not just wake up and start to write judgment merely because briefs have been filed by the parties. That in my view will amount to a no hearing as it is contrary to the Rules above. I have no hesitation therefore in coming to the conclusion that the purported judgment of the Court below was a nullity having been based on an appeal which was never heard. The parties were obviously not given a hearing by the Court below before delivering its judgment. That is a fundamental and undisputed requirement for a valid adjudication. The breach was fatal as I said earlier.”
UWAIS, C.J.N., on page 267, paragraphs A to B said: – “There can be no doubt that the Court below committed a serious error. Since the parties were denied the right of fair hearing as guaranteed by the Constitution, the determination of the appeal before that Court is a nullity and I have no hesitation to declare it null and void.”
In ROBERT C. OKAFOR V. ATTORNEY-GENERAL OF ANAMBRA STATE & 2 ORS. (1991) 6 NWLR (pt. 200) 659, this Court per KARIBI-WHYTE, JSC on page 678, restated that –
“…the mistake on the part of the Court has resulted in a procedural irregularity which involved the infringement of the constitutional right to fair hearing, It is well settled that any breach of the provisions of the fundamental right provisions renders the act subsequent to such breach a nullity. See Adigun v A-G of Oyo State (supra).”
In that case, after parties had filed their respective briefs, the Court of Appeal fixed hearing of the appeal for the 14th day of June, 1988. Mistakenly, the Court of Appeal gave judgment on 11th April, 1988 without the knowledge and oral argument of the parties, that is, without hearing the appeals. Upon an application to the Court of Appeal to set aside its judgment of 11th April, 1988 on the ground of denial of hearing, the Court of Appeal set aside the said judgment for being a nullity. The further appeal to this Court was dismissed and this Court affirmed the decision of the Court of Appeal setting aside its judgment for breach of the right to fair hearing.
Let me now consider the prayer of learned Counsel for the respondent that this Court invoke its general powers under S. 22 of the Supreme Court Act 2004 to hear and determine Appeal No. CA/PH/494/2010 as constituted before the Court of Appeal, in the interest of justice, in view of the special circumstances of this case that show that while the suit was pending at the trial Court, the appellant herein trespassed on the land, started building thereon and has completed the building and is occupying the place. Learned counsel for the appellant has opposed this application, arguing that S.22 of the Supreme Court Act is not intended to confer on this Court the jurisdiction to determine appeals against decisions of the High Court and that to invoke it to give this Court such power would render it in conflict with S.233(1) of the 1999 Constitution that provides for the exclusionary jurisdiction of this Court to hear and determine appeals from the Court of Appeal and S.240 of the 1999 Constitution that vests exclusive jurisdiction on the Court of Appeal to hear and determine appeals from the decisions of High Courts, Sharia Courts of Appeal of States, Customary Courts of Appeal of States, Courts Martial and other Tribunals.
Let me start the determination of this issue by reproducing herein the exact text of S.22 of the Supreme Court Act 2004 for ease of reference. It states thusly –
“The Supreme Court may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Supreme Court thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the Court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the Supreme Court as a Court of first instance and may rehear the case in whole or in part or may remit it to the Court below for the purpose of such rehearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of tat Court.”
The clear words of this provision show its intendment is that the power it gives to this Court is to be exercised to determine the real question in controversy in an appeal before it. So whatever this Court does in exercise of the general powers given to it by S.22 of the Supreme Court Act 2004 must be aimed at determining the issues for determination in the appeal before it. The correctness of the judgment of the trial Court is not an issue in this appeal. The issue in this appeal is the validity of the judgment of the Court of Appeal. There is nothing in S.22 of the Supreme Court Act that gives this Court the power to take over the hearing and determination of any appeal against the judgment of the trial Court that is pending before the Court of Appeal.
By virtue of S.233(1) of the 1999 Constitution, the appellate jurisdiction of this Court is limited to the hearing and determination of appeals against decisions of the Court of Appeal. By virtue of S.240 of the Constitution, no other Court can hear and determine appeals to the Court of Appeal. Such jurisdiction is vested by S. 240 in the Court of Appeal “to the exclusion of any other Court of law in Nigeria”.
This Court therefore, has no jurisdiction to hear and determine an appeal to the Court of Appeal against the decision of the High Court. This Court has in a long line of cases restated this law on the basis of the above provisions of the Constitution or similar provisions. In OODO OGOYI V EMMANUEL UWAGBA & ANOR (1995) 9 NWLR (pt 419) 283 on page 293, this Court held that: –
“By Section 219 of the 1979 Constitution, only the Court of Appeal has jurisdiction to the exclusion of any other Court of law in Nigeria to hear and determine appeals from the Federal High Court, the High Court of a State, Sharia Court of Appeal of a State and Customary Court of Appeal of a State. This Court is therefore not competent to hear appeals straight from the High Court, Sharia Court of Appeal or Customary Court of Appeal. A ground of appeal complaining directly against the decision of the High Court is not proper. See Adio & Ors v The State (1986) 2 NWLR (pt 24) 581 and Harriman V. Harriman (1987) 3 NWLR (pt 60) 244. Thus only Section 213 of the said Constitution which conferred appellate jurisdiction on this Court and it is the only Court in Nigeria which can hear and determine appeals from the Court of Appeal.”
In NSEABASI NSE OKON V. THE STATE (1995) 1 NWLR (pt. 372) 382 on page 389 paragraph B to C, this Court also restated that “It is evident that grounds 1 and 2 are complaining about error in law made by the learned trial judge in OSAYANDE UHUNMWANGHO V. F.I. OKOJIE & ANOR (1989) 5 N.W.L.R. (Pt. 122) 471 at 491, paragraphs G-H where NNAEMEKA-AGU, J.S.C. held thus: “I also agree that as the issue of personal service of forms 48 and 49 were not decided by the Court of Appeal, they could have been raised in this Court by way of a cross-appeal.”
“For it must be born in mind that save for the original jurisdiction of this Court under the narrow compass of Section 212 of the Constitution of 1979, its jurisdiction is appellate. Once the Court of Appeal has decided an issue, this Court’s appellate jurisdiction is limited to seeing whether or not that issue was rightly decided. It has no jurisdiction over issues which were not decided by the Court of Appeal.”
In IJEBU-ODE LOCAL GOVERNMENT V. ADEDEJI BALOGUN CO. LTD. (1991) N.W.L.R. (Pt. 166) page 136 at pages 153-153-154, held thusly:” That this Court cannot exercise jurisdiction over the judgment of the High Court S.213(1) of the Constitution of 1979.” See also AFRICAN CONTINENTAL BANK PLC V. OBMIAMI BRICK & STONE (NIG.) LTD. (No. 2) (1993) 5 N.W.L.R. (Pt. 294) page 399 at page 413 paragraphs D-E, page 419, paragraphs G-H.
As it is, since the judgment of the Court of Appeal is a nullity, the appeal to the Court of Appeal can now be heard and determined by that Court.
In the light of the foregoing, I resolve issue No. 1 in favour of the appellant.
In the light of the determination of issue no. 1, I do not think any purpose would be served considering issue no.2.
On the whole, this appeal succeeds. It is allowed. The judgment of the Court of Appeal sitting at Port-Harcourt delivered on 21-2-2013 in Appeal No. CA/PH/494/2010 is hereby declared a nullity and is set aside. Appeal No. CA/PH/494/2010 shall be heard and determined by a different panel of the Court of Appeal.
I make no order as to costs.