Nigerian Agricultural Co-op & Rural Development Bank Ltd. Anor. V. Mbio Oku Ikot Oku Odung Multi-purpose Co-op Society Ltd. & Ors. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

The Respondents herein had sued the Appellants before the High Court of Akwa Ibom State sitting at Ikot Ekpene in suit No.HK/3/1993 which was later transferred to Ikono Division of that court. After trial, judgment was entered in favour of the Respondents on the 6/4/2004 and after execution of the said judgment against the property of the 1st Appellant in 2007, the Appellant applied to the High Court unsuccessfully, to set aside the execution. On the 21/7/2010, the Appellants filed another application before the High Court seeking the following reliefs:-

1. An Order of court extending time for the Defendant/Judgment Debtor/Applicants to apply for setting aside of the judgment that was delivered on 6th April, 2004 by this honorable court in suit No.HKN/3/2003 in violation of or contrary to the principles of fair hearing.
2. An Order setting aside the judgment that was delivered by this honorable court on 6th April, 2004, in suit No.HKN/3/2003 for the purpose of providing opportunity to the Defendants/Applicants/Judgment Debtors, to defend the case.
3. A consequential order of court staying execution or setting aside the execution that was levied against the properties of the defendants/judgment debtors/applicants sequel to the judgment of the court that was delivered on 6th day of April, 2004.
4. An order of court granting leave to Barr. Felix J. Udom or any other lawyer in the firm of Paul Usoro (SAN) & Co. to take over this case from Barr. Samuel Ikpo of Samuel Ikpo & Co. and handle same on behalf of the defendants/judgment debtors/applicants pending the determination of this application/case.

AND for such further order or orders as this honourable court may deem fit to make in the circumstances of this case.

This appeal is against the ruling of the High Court in the application, delivered on the 27/7/2011 dismissing it for lacking in merit. The notice of appeal containing four (4) grounds was filed on the 1/8/2011 and in the Appellants’ brief filed on the 25/1/2012, Mr. Felix J. Udom, Esq., learned counsel for the Appellants has distilled the following issues which he says arise for decision in the appeal:-

i. Whether the Ruling/Decision of the learned trial judge was against the weight of affidavit evidence and the argument of Applicants/Appellants’ counsel.

ii. Whether the learned trial judge erred in law when he refused to set aside the judgment of suit No.HKN/3/2003 which was a nullity and also delivered in violation of the principle of fair hearing.

iii. Whether the High Court of Akwa Ibom State, Ikono Judicial Division had jurisdiction to entertain suit No.HKN/3/2003 which affected a Federal Agency.

The Respondents brief settled by Ekpo Ntekim, Esq., was filed on the 11/5/12 but deemed on the 11/6/12 and the Appellants’ issues (ii) and (iii) were adopted as the issues calling for determination in the appeal. However, the three (3) issues raised in the Appellants’ brief were argued by Mr. Ntekim in the brief.

A careful reading of the grounds contained in the Appellants’ notice of appeal would easily reveal that the particulars of the omnibus grounds (i), ground (ii) and (iii) along with their particulars are entirely on the complaint of lack or want of fair hearing against the judgment of the High Court. The common issue in the three (3) grounds of the appeal is that of the alleged breach or non compliance with the principle of fair hearing in the trial which resulted in the judgment of the High Court the Appellants are seeking to set aside.

For that reason, the real and crucial issues that require determination in the appeal are the issues (ii) and (iii) formulated in the Appellants’ brief. Since the law is now firmly established that this court is at liberty to use and consider issues from the grounds of an appeal which it considers material and crucial in the determination of the appeal, from those formulated by the parties or even ignore some or all issues raised in briefs, I intend to consider issues (ii) and (iii) of the Appellants in the determination of the appeal. Recently, the Supreme Court had restated the law in the case of Chabasava v. Anwasi (2010) 10 NWLR (1201), 163 at 181 per Mukhtar, JSC, (now CJN) that:-

“In facts, the law permits an appellate court, to ignore some or all issues raised in the briefs of argument and formulate its own issues, the way it deems them to be material once they are distilled from the grounds of appeal. See Opara v. D. S. (Nig.) Ltd. (1995) 4 NWLR (Pt.390) page 440; Bankole v. Pelu (1991) 8 NWLR (Pt.211) page 523 and Uko v. Mbaba (2001) 4 NWLR (Pt.704) page 460.”One other point which needs be mentioned here is that the Appellants issue (iii) was distilled from ground four (4) of the notice of appeal which did not arise from the ruling of the High Court appealed against. In fact the issue was not raised before and was not considered by the High Court in the ruling appealed against. Ordinarily, the law is that an issue which is new or fresh can only be properly raised in an appeal with prior leave of the court. The law however makes an exception where the fresh or new issue is one challenging the jurisdiction of a trial or lower court to entertain the action from which an appeal emanated. For an issue which touches or goes to the jurisdiction of a court to entertain a case/appeal, it can be raised as a new or fresh issue in an appeal without the need for prior leave of the court to raise it. See Comfort v. Admo Cases Nig. Ltd. (2000) ALL FWLR (335) 93; Adesanya v. President (2001) FWLR (46) 859, (01) 2 NOLR, 358; FRN v. Ifegwu (2003) 15 NWLR (842) 113; Elugbe v. Omokhafe (2005) ALL FWLR (243) 629, (04) 18 NWLR (905) 319.It is in the premises of the above position of the law that the Appellants issue (iii) which did not arise from the decision/ruling appealed against, but which challenges or questions the jurisdiction of the High Court to entertain the case of the Respondents, would be considered in the appeal. In addition, the Respondents, counsel has not challenged the said issue but has reacted to it by adopting and arguing it in his brief of argument.

The Appellants’ arguments on the issue (ii) are that the Appellants’ right to fair hearing was breached in the trial before the High Court because they were not served hearing notices and that they were denied the right to address the court before the judgment of the High Court was delivered. It was argued for the Appellants that the only method of proof of service of hearing notice was by the affidavit of service by the bailiff filed before the High Court as provided under Order 12, Rule 28 of that Court’s Rules, 1989. According to counsel for the Appellants, it was “unlawful for the Plaintiffs’ counsel to report to the court on 13/12/2004 that hearing notice was served” on the Appellants because there was no record of the affidavit of service filed by the bailiff. Citing the provisions of Section 294 (2) of the 1999 Constitution, he submitted that the High Court was supposed to have adjourned the case for reply address by the Appellants when on 25/2/2004 the Respondents’ counsel concluded/reopened his final address.

Learned counsel relying on Section 36 (1) of the 1999 Constitution and inter alia, the cases of Kotoye v. CBN (1989) 1 NWLR (98) 419; Bamgboye v. Ilorin (1999) 70 LRCN 214 and Okoebor v. Police Council (2003) 12 NWLR (834) 444, submitted further that the failure by the High Court to adjourn the case for address by the Appellants before judgment rendered the judgment a nullity. It was the contention of the learned counsel that the case of Okike v. L.P.D.C cited before the High Court was in support of their application because their case is that the Appellants were not given the opportunity to address the court before the case was adjourned for judgment and they have suffered miscarriage of justice when the judgment was executed. The cases of Mobil v. Monokpo (2004) 115 LRCN 3016 at 3094 on non-compliance with the Rules which affect the foundation or props of the case and PURIFICATION TECHNIQUES (NIG) LTD. v. A.G. LAGOS STATE (2004) ALL FWLR (211) 1479 at 1491 on the effect of non-compliance with the right to fair hearing were referred to and we were urged to allow the appeal on the ground.

On the issue (iii), the submissions by the learned counsel for the Appellants are that because the 1st Appellant is a Federal Government agency, the Akwa Ibom State High Court has no jurisdiction to entertain the case against it by the authority of NEPA v. Edegbenro (2002) 103 LRCN (2280) 2295 which held that the Federal High Court was vested with exclusive jurisdiction over Federal Government and its agencies. We were invited to allow the appeal on this issue.