Mr. Gabriel Uleke & Anor V. Princess Benedict A. Kakwa & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment)

The Appellants had filed a writ of summons and statement of claim on the 16/7/2010 at the High Court of Cross River State, Obudu against the Respondents for the following reliefs:

1. A declaration that the seizure of claimants’ Peugeot 504 saloon car bearing engine number FX 3965045 X and Chassis No. VF 3504 Mo 106049832 by the Defendants is wrongful and illegal.
2. The sum of N5,000,000.00 (Five Million Naira) as general and special damages for wrongful seizure/detention of the car.
3. An order directing the defendants to return the said car to claimants in a good condition and repair forthwith. (See pages 1, 2 and 5 of the records).

The Appellants also filed two motions for injunction; one ex-parte and the other on notice which were later transferred along with the suit, to the Ogoja Division of the High Court where the learned counsel moved the ex- parte motion on the 23/7/2010. Ruling on the ex parte motion was delivered on the 26/7/2010 and the motion as well as suit No. HD/38/2010, to which it related were dismissed on the ground that they constituted an abuse of the High Court process because the claims of the Appellants were said to relate to issues in another pending suit.

Being aggrieved by that decision, the Appellants brought this appeal vide a notice and 3 grounds of appeal filed on the 24/8/2010 and in line with the requirements of the Rules of the court, filed the Appellant’s brief on the 8/4/11.

After the expiration of the time prescribed by the Rules for the Respondents to file their brief of argument in the appeal if they intended to contest the appeal, learned counsel for the Appellants brought an application on the 6/6/2012 for the appeal to be heard on the Appellants’ brief alone. It was heard on the 4/12/12, when Mr. J. K. Omang, Esq., appeared for the Respondents and said he did not oppose the grant of the motion and it was granted as prayed. In the presence of learned counsel for the parties, the appeal was set down for hearing on the 18/3/2013 on the Appellants’ brief alone, accordingly.

On the 18/3/13, Mr. J.K. Omang was absent from the court and did not send any communication to the court to excuse the absence. There was no record that the learned counsel had filed the Respondents’ brief or taken any step to do so. The court therefore proceeded with the hearing of the appeal as scheduled and Mr. E. A, Ubua, Esq., learned counsel for the Appellants, adopted the Appellants’ brief and urged us to allow the appeal. The following two (2) issues were formulated by the learned counsel for decision in the appeal as follows:-

1. Whether or not the learned trial judge was right in dismissing the substantive suit under the circumstances he did.
2. Whether or not Appellants were accorded a fair hearing before the dismissal of their suit.

Since the Respondents did not file a brief in the appeal, the appeal is uncontested and they are in law deemed to have conceded to all the points and issues canvassed in the Appellants’ brief. See Odiase v Agho (1972) 1 ALL NLR (pt.1), 170; Okongwu v NNPC (1989) 4 NWLR (115) 296; UBN v Oki (1999) 8 NWLR (614) 244 at 251; Ugboaja v Sowemimo (2008) (10) MJSC, 105: Salau v Para-Koyi (2001) 13 NWLR (731) 602. However, the absence of a contest by the Respondents does not guarantee or even translate to an automatic success of the appeal because the law still requires the court to consider whether the appeal is sustainable in law. In the case of Unity, Bank Plc. V Bouri (2008) ALL FWLR (416) 1825 at 1848, the Supreme Court had put the position thus:

“The failure of a respondent to file a reply brief is immaterial. This is because an appellant will succeed on the strength of his case. But a respondent will be deemed to have admitted the truth of everything stated in the appellants’ brief in so far as such is born (sic) out by the records. In other words, it is not automatic. An appellant must succeed or fail on his own brief, John Holt Ventures Ltd. v Oputa (1996) 9 NWLR (470) 101 CA; Onyejekwe v The Nigeria Police Council (1999) 7 NWLR (Pt, 463) 704 CA; Waziri v Waziri (1998) 1 NWLR (Pt. 533) 322 CA; UBA Plc v. Ajileye (1999) 13 NWLR (Pt. 633) 116 CA.”

See also Akas v Manager & Receiver (2001) 8 NWLR (715) 436 at 442; Ebe v Ede (2004) 3 NWLR (860) 215; Echere v Ezirike (2006) ALL FWLR (323) 1597; Salau v Para-Koyi (supra); Nible v Akpan (2007) 38 WRN, 185 at 195.

In the above premises of the law, I would consider the issues submitted by the learned counsel for the Appellant in the determination of the appeal.

ISSUE 1:

Whether or not the High Court was right to dismiss the substantive suit in the circumstances it did:-

Learned counsel had submitted that courts are at all times enjoined to adjudicate on the facts and issues placed before them by the parties and not to make a case for any of them, citing inter alia, Shasi v Smith (2009) 40 NSCQR 255 at 271 and Olufeagba v Abdul-Raheem (2009) 40 NSCQR, 684 at 727 8. It was his submission that the question of the substantive case being an abuse of the High Court’s process was not an issue raised by the defendants in any way and that at the stage of the ex-parte motion, the substantive case was not in issue or placed before the High Court for decision. According to him, all that the Appellants placed before that court, were facts showing that they had a prima facie case warranting the grant of the interim injunction they sought and that it would have been wrong for the High Court to decide the issue of the substantive case at that stage even if raised by the defendants. Relying on the cases of Orti v Zaria Ind. Ltd. (1992) 1 SCNJ, 29 at 56; Odutola Holdings Ltd. v Ladejobi (2006) 26 NSCQR (2) 1026 at 1051 and Danone v Voltic Nig. Ltd. (2008) 6 SCM 43 at79, he said that courts have been admonished not to pre-judge the substantive suit when considering interlocutory applications. Learned counsel conceded that the High Court had the powers to raise issues not specifically placed before it by the parties for the purpose of doing justice in a case but that it would not proceed to decide such issues without inviting the parties to address it on them. Stirling Ltd. Yahaya (2005) 11 MJSC, 138 and Chanu v UBA (2010) 41 NSCQR, 656 at 679 B0 were cited as authorities for the submission. It was then pointed out that the High Court raised the issue of the substantive case being an abuse of the court process in its ruling suo motu and decided it by dismissing the Appellants’ case without affording them a hearing, a practice said to have been deprecated in the case of Shasi v Smith (supra). In further argument, counsel said the High Court was wrong to have dismissed the substantive suit in the ruling on an application for injunction by raising an issue suo motu and without giving the parties an opportunity to be heard thereon. He urged us to resolve the issue in favour of the Appellants.

On his issue 2, learned counsel said that Section 36(1) of the 1999 Constitution (as altered) provided for an inviolable right to a fair hearing for the parties in the determination of their civil rights and obligations by courts of law and that one of the key elements of the right is that the parties must be given an opportunity to put forward their case and not to be shut out. Placing reliance on Mobil v Monokpo (2004) 2 MJSC, 1 at 30, he submitted that the right is so fundamental that the court is under an obligation to hear the parties on a case no matter how unmeritorious it might be. It was argued further that the parties were yet to join issues in the substantive case because the defendants had not filed a defence or raise any objection to the case before the High Court suo motu dismissed it without hearing the parties, thereby shutting them out. Learned counsel contended that the Appellants were in the circumstances, denied a fair hearing by the High Court and their constitutional right violated by the suo motu dismissal of their case without a hearing. He cited the case of UBA Plc. V Mode Nig. Ltd. (2002) FWLR (112) 147 at 168 and also said that the High Court had made out a case for the defence instead of playing the role of an impartial umpire in line with the principle of nemo judex causa which is a cardinal pillar of fair hearing. We were urged to resolve the issue in favour of the Appellants and in conclusion, to allow the appeal on all the grounds, set aside the ruling of the High Court and remit the case back to that court for trial before another judge thereof.