Ifeanyi Nwankwu & Anor. V. Oraegbunam Anieto, Esq (2001)
LawGlobal-Hub Lead Judgment Report
D. MUHAMMAD, J.C.A.
This is an interlocutory appeal, against the decision of Hon. Justice J.C.N. Ugwu CJ, of the Enugu state High Court, dated 20th April, 2000. The decision was against the defendants, who before us, are and will hereinafter, be called the appellants. The plaintiff at the lower court is and will for the purpose of this appeal, be called the respondent. The facts of the case in the instant appeal are very brief, and are hereunder stated.
Following a judgment for the sum of N676,386.27k, awarded against the appellants, by the Anambra State High Court, sitting at Onitsha. Respondent being the beneficiary, registered the judgment at the Enugu State High Court, in suit No. E/4CJ/99. Consequently, 1st appellant’s car with Registration No. CY539KJA was attached. By a notice of motion, dated 16th, but filed on the 27th day of December, 1999, the appellants’ prayed the lower court for an order, setting aside the writ of execution, the notice of attachment and other processes issued thereto, as being fraudulent. Appellants also prayed that the sale of the attached vehicle be stayed and or suspended.
During the pendency of this motion, the appellants applied to the Enugu State Sheriff, pursuant to S.26 of the Sheriff and Civil Process Act for the interim release of the attached vehicle on bond to the 1st appellant. The appellants were obliged.
The respondent filed a notice of motion, dated 31/1/2000, seeking the dismissal of appellants’ earlier motion that had remained pending for incompetence.
Eventually, the two applications matured for hearing on 20th April, 2000. On that date, after the case had been called up and counsel’s appearance announced, the court proceeded to make a mandatory order, against the appellants for the production of the attached vehicle or payment of the judgment debt in court. The appellants were dissatisfied with the order so made, and have come up with the instant appeal.
Briefs of argument have been filed and exchanged. The appellants have in their briefs and distilled from their two grounds of appeal, formulated two issues for the determination of the appeal. These are:
“(1) Whether it was right for the learned Chief Judge, to suo motu make an order for production of motor vehicle, Peugeot 504 Station Wagon with Reg. No. CY 539 KJA or payment of judgment debt of N676,386.27 into court, when there was pending application in restrain and in absence of any prayer to that effect?
(2) Whether it was right for the learned Chief Judge, to make an order for production of the said motor – vehicle or payment of judgment debt against, the appellants without heating from them, or given them opportunity to be heard on the matter?”
The respondent, also has two issues as arising for the determination of the appeal. The issues are:
“(1) Whether the learned trial Judge’s order for production of the attached vehicle to court, before he could go into the merits of the motions pending before him was solicited for or not.
(2) Whether the learned trial Judge’s order for production of the attached vehicle to court, before he could go into the merits of the motions pending before him was lawful assuming, but not conceding that the order made by the learned judge was unsolicited for.”
Under the first issue, the appellant’s counsel argued that on the day the order appealed against was made, the only known business before the court was the applications, that had matured for hearing.
There was no prayer in respect of the order made by the court. The correct approach was for the court to consider the applications before it, which approach would have resolved the matter one way or the other. It is trite, learned Counsel submitted, that an order of court that had not been prayed for cannot be sustained. The order must be deemed to have been given without the necessary jurisdiction. Relying on, amongst others, Olurotimi v. Ige (1993) 8 NWLR (Pt.311) 257, (1993) 10 SCNJ 1; Edebiri v. Edebiri (1997) 4 NWLR (Pt.498) 165, (1997) 4 SCNJ 177 at 190; Kalio v. Daniel-Kalio (1975) 2 SC 15, we were urged by learned Counsel to allow the appeal on this note.
Under the 2nd issue, it was submitted that in making order, lower court had denied the appellants the opportunity of being heard. The respondent was not heard also. The procedure adopted by the court had breached S.36 of the 1999 Constitution, dealing with the rules of fair hearing. Wherever these rules are breached, proceedings thereto must be declared null and void. Learned Counsel cited and relied on the following cases: Adeniyi v. Governing Council, Yaba College of Technology (1993) 6 NWLR (Pt.300) 426, (1993) 7 SCNJ 304 at 323, Kim v. State (1992) 4 NWLR (Pt.233) 17, (1992) 4 SCNJ 81 and Long-John v. Blakk (1998) 6 NWLR (Pt.555) 524 SC, (1998) 5 SCNJ 68 at 92.
On the whole, counsel submitted that for the two reasons given under their two issues, the appeal should succeed.
In arguing the appeal, learned respondent’s counsel under the 1st issue, submitted that it was incorrect to say that the order challenged in the instant appeal, was made suo motu by the lower court. It was argued that reference to p. 11 of the record clearly indicates that the order was prayed for.
Without necessarily conceding, learned Counsel further submitted that the court had, pursuant to Order 25 rule 6 of the rules of court, the power to issue an unsolicited relief.
Under the 2nd issue, respondent also argued that there was no breach of the rules of fair hearing, since appellant never asked to be heard by the court let alone to accuse the court of shutting him out.
The order given by the court was to maintain the status quo between the parties. Furthermore, since the appellants had acquired access to the attached vehicle fraudulently the trial Judge was perfectly in order when he issued the, order to ensure compliance with the Constitution and the law.
Respondent’s counsel urged us to dismiss the appeal.
Now let us look at the rules of court and the provisions of the Constitution pursuant to which the Order was made or challenged.
Order 25 rule 6 of the Anambra State High Court Rules applicable to Enugu State provides:-
“6. Subject to any particular rule, the court may in all causes and matters make any order which it considers necessary for doing justice, whether such order has been expressly asked by the person entitled to the benefit of the order or not.”
We shall need to know the import of Order 24 rule 5 of the rules of court as well.
The rule provides:
“Order 24,r.5. No proceedings in the court, and no process, order, ruling, judgment issued or made by the court shall thereafter be declared void solely by reason of any defect in procedure or writ or form, as prescribed by these rules;
Rather every court shall decide all issues according to substantial justice without undue regard to technicalities.”
Let us be further guided by the provision of S.36(2)(a) which provides:
“36(2) Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law-
(a) provides for an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person.”
There does not seem to be anything complicated about the foregoing rules of court and constitutional provision. It is already a cardinal rule of interpretation that words in statutes must be given their natural meaning, where the words are unambiguous.
In doing so to the statutes relevant to the facts of the instant appeal, it becomes necessary to agree with appellant counsel’s submissions. There seems to be two main reasons that make appellant’s arguments irresistable. Firstly, from the wordings of Order 25 rule 6 supra, the lower court was in the position to issue an unsolicited relief. Thus, even if the order it gave was suo motu made as long as the order was not in breach of “any particular rule” the order as made would be allowed to persist. But is the order of the lower court not in breach of “any particular” rule of court?
Parties and indeed, the appellate court are bound by the record of appeal.Luckily, counsel appear to be at one that the respondent did not ask for relief in respect of which the lower court made the order, the legality of which is being challenged in the instant appeal. The record of appeal before us reflected this much.
S.36 of the 1999 Constitution, is a codification of the all important rule of natural justice and in particular dealing with fair hearing. The Constitution has made the fundamental requirement that a party whose rights and obligations was being determined must be heard before such determination. The provision also illegalizes any law which facilitates determination of the rights and or obligations of a party without giving the party so affected the opportunity to make representation.
In the instant appeal, it was not in dispute that appellant had not been heard prior to the order made by the lower court. The position here is not so much that the rule of court pursuant to which the order was made, was illegal. It was the procedure adopted in making the order that was wrong. The order stands in breach of S.36 of the Constitution and the rule of fair hearing thereunder articulated. Such an order would neither be just nor would the procedure adopted in making the order lawful. A plethora of authorities abound stating the effect of breach of the rule of fair hearing on the proceedings wherein the breach occurred. The proceedings are void, See U.B.N. Plc v. CFAO (Nig.) Ltd. (1997) 11 NWLR (Pt.527) 118 CA and Military Governor Imo State & Anor. v. Chief B.A.E. Nwauwa (1997) 2 NWLR (pt.490) 675 SC.
The point must be repeated here that the primary duty of courts is to do justice to parties and rules of court in essence are put in place to facilitate the attainment of this overriding objective.
This much Order 26 rule 5 has stated. The rule provides as a basis for overturning a decision the injustice which the decision had occasioned. See also Bango v. Chado (1998) 9 NWLR (Pt. 564) 139 at 140 and Nneji v. Chukwu (1988) 3 NWLR (Pt.81) 184.
In sum it is my considered view that although the lower court had the power of making an unsolicited order pursuant to Order 25 rule 6, the rule did not empower the court to foreclose the appellants’ right of being heard before the order was made.
Such an unsolicited order cannot be sustained because with the foreclosure of the appellants right of being heard a breach of the Constitution and injustice had been occasioned. Such an order and indeed the entire proceedings must be set aside by virtue of Order 26 rule 5.
The two issues for the foregoing reasons are hereby resolved in favour of the appellants. The appeal has therefore, succeeded and is allowed. The order and indeed, the entire proceedings of the lower court are hereby declared void.
The respondent should pay the cost of this appeal to the appellants assessed at N3,000.00.
Other Citations: (2001)LCN/1023(CA)
