Leaders Of Company Ltd. & Anor V Major General Musa Bamaiyi (2010)
LAWGLOBAL HUB Lead Judgment Report
SULEIMAN GALADIMA, J.S.C.
This is an Appeal against the Judgment of the Court of Appeal, Kaduna Division. In the Judgment delivered on 26th July, 2004, the learned Justices of the Court of Appeal, struck out the 1st and 2nd Appellants Notice of Appeal dated 2nd October, 2002, and the grounds of appeal contained therein for being incompetent. The Judgment of the trial court delivered on 7th October, 1998 in suit No. KDH/2/49/97 was affirmed and the 1st and 2nd Appellants were ordered to pay the sum of N7,000.00 as costs to the Respondent.
The summary of facts relevant to this appeal is exposed as follows: The Respondent who was the plaintiff at the trial Court obtained judgment on 7th October, 1998 against the 1st and 2nd Appellants who were the defendants. Prior to the delivery of judgment, the Appellants had PAGE| 3 applied by way of a Motion on Notice to the trial Court on 30th September, 1998 for an order granting leave to the Defendants to adduce oral and documentary evidence and open its defence in the suit and thereafter address the Court before judgment is entered. The Motion was argued by the parties. The Learned trial judge dismissed the application before proceeding to deliver his judgment on the 7th October, 1998. Dissatisfied, the Appellants herein then filed their Notice of Appeal on the 13th October, 1998.
Subsequently, on 26th September, 2002, the appellants applied for an extension of time for leave to appeal against the ruling of the trial court delivered on the 7th October, 1998, together with leave to appeal and an extension of time to appeal against the said ruling. It is note worthy that the trial Court granted the Appellants their application on 26th September, 2002. The appellants also sought the leave of Court to file their Brief of Argument out of time on 14th day of May, 2003. The Court of Appeal granted the Appellants their application to file their Brief of Argument out of time. The Respondent also filed their brief.
On 28th April 2004 when the Appeal came up for hearing at the Court below, the parties adopted their briefs of argument and the court reserved Judgment.
It is again note worthy that throughout the hearing of the Appeal the issue as to whether there was an application for an extension of time, as prescribed by the provisions of section 25(a) of the Court of Appeal Act. Cap.75 LFN 1990, before the Appellants filed their Notice of Appeal dated 2nd October, 2002, was NEVER raised by any of the parties, neither did the Learned Justices raise the issue themselves, to enable parties address the Court on that point. Furthermore, the Notice of Appeal was filed on the 2nd October, 2002 and not on the 4th October, 2002 as stated in the lead judgment. On 4th October, 2002, the said Notice of Appeal was certified as True Copy at the High Court of Justice, Kaduna.
However, on the 26th July, 2004, the Learned Justices, whilst delivering their judgment, raised suo motu the fact that there was no application for extension of time as prescribed by the Court of Appeal Act. Cap 75 L.F.N. 1990 and there was nothing whatsoever before the Lower Court to show that time was extended to the Appellants to file their Notice of Appeal dated 2nd October, 2002 out of time. The Court held that the Appellants Notice of Appeal together with the grounds stated therein were incompetent and were accordingly struck out. The Appellants being dissatisfied with the judgment of the Court below appealed. The Notice of Appeal contained three grounds. Two issues identified for determination are as follows:
‘1. Whether or not the Court of Appeal Learned Justices can suo motu raise an objection to a Notice of Appeal and the grounds contained therein at the time of writing judgment, deal with the issue alone and proceed to strike out the Notice and grounds of appeal together with the issues, formulated thereon, without hearing the parties or calling upon the parties to address, the court on the issue.’
- Whether the Lower Court was not duty bound to regard its records of Court, at the time of writing and delivery its judgment.’ On the other hand the Respondent, in his brief filed on 17th March, 2010 raised sole issue thus: ‘Whether it is right for the Court of Appeal to raise the issue of incompetent Notice of Appeal suo motu and proceeded to dealt (sic) with issue without argument from the notices.’ It would appear that the Appellants found it necessary to react to the points raised in the Respondents brief, when they filed their Reply brief on 13th April, 2010. However, on the 12th October, 2010 when we took this appeal, learned Counsel for the parties having identified their respective briefs of argument, agreed that the Court below erred in law to have raised the issue as to the competence of the Notice of Appeal suo motu, without affording the parties an opportunity to address it on the point. Both Counsel placed reliance on the cases of KATTO v C.B.N (1999) 6 NWLR (pt.607) 390. ADENIJI v. ADENIJI (1972) 1 All NRL.298 and ADEGOKE v ADIBI (1992) 5 NWLR (pt.242) at 410 and ATANDA v LAKANMI (1974) 3SC. 109.
Indeed, with the consensus of the parties that the Court below erred in law to have raised the issue as to the competence of the Notice of Appeal suo motu, without affording the parties an opportunity to address it on the point, this has resolved the first issue This Court in KATTOS case (supra) held thus: ‘On no account should a Court of law raise a point suo motu, no matter how clear it may appear to be, and proceed to resolve the case between the parties thereon without inviting them or Counsel on their behalf to address the Court on the point. If it does so, it will be in breach of a partys fundamental right to fair hearing. In the instant case, the Court of Appeal was wrong in raising the issue of jurisdiction suo motu and proceeding to decide the appeal thereon without inviting Counsel to address it thereupon.’ The Appellants were denied fair hearing at the Court below. This court has held in a plethora of cases that where a party has been denied fair hearing the entire proceeding no matter how well conducted will amount to a nullity. See ADIGUN v. A.G. OF OYO STATE (1987) 1 NWLR (pt.56) p.197 OKAFOR v A.G. ANAMBRA STATE (1991) 6 NWLR (pt.200) 659. I shall be brief in considering the second issue. It is trite law that the courts are bound by their records and must look into its records. If the Learned Justices of the Court below had looked into the Court records, they would have seen that the Appellants had obtained the necessary leave for extension of time to comply with S.25 (a) of the Court of Appeal Act (Supra), before filing their Notice of Appeal on the 2nd day of October, 2002. PAGE| 6 The resolution of these two issues in favour of the Appellants determines the Appeal. The proceedings before the Court below having been held to be null and void, it would be an exercise in futility to consider other issues raised by the Respondent argument. In conclusion, I hold that the appeal succeeds. I set aside the judgment of the court below and order that the appeal be remitted to that Court for a rehearing by a different panel. I make no order as to costs.
SC. 246/2004
