Chief B.I. Okoro & Ors. V. Chief Ferdinand Okoro (2009)
LawGlobal-Hub Lead Judgment Report
MOHAMMED LAWAL GARBA, J.C.A.
The High court of Imo State, sitting at Owerri had granted the Respondent in this appeal, orders for the enforcement of his fundamental rights, injunction and damages against the Appellant in this appeal in a ruling delivered on the 28th of November 2000 in motion No. HOW/90M/97.
Being dissatisfied with the decision in the said ruling, the Appellants filed a Notice of Appeal against same on the 14th of December, 2000 on a single ground of appeal. With the leave of court the Notice of Appeal was amended by the addition of three (3) more grounds of appeal on the 27th of March 2003.
Without their particulars, the four (4) grounds of the appeal are thus:-
GROUND 1
“The learned trial judge erred in law in proceeding to hear and determine the motion on Notice filed on 13/8/97 for enforcement of Fundamental Human Rights when he had no jurisdiction to entertain the motion at all.
GROUND 2
The learned trial Judge erred in law in proceeding to hear and determine the Motion on Notice dated 13/8/97 filed the same day for enforcement of Fundamental Right when the conditions precedent to exercising jurisdiction were not fulfilled by the Applicant.
GROUND 3
The learned trial Judge erred in law when he relied on the order of his predecessor Hon. Justice A. U. Amaeshi dated 20/7/97 to determine this application when the said order is invalid and a nullity ab initio, being an Order made without jurisdiction.
GROUND 4
The learned trial Judge erred in law and denied the Appellants fair hearing in proceeding to rely on the Order of his predecessor in Office. Hon. Justice A.U. Amaeshi dated 20th day of July 1998 without affording the Appellants or their Counsel the opportunity of being heard on it.
In support of their respective positions in the appeal, briefs of argument were filed by the learned counsel for the parties as required by the Rules and practice of the court. The Appellants’ brief was deemed filed on 27th March 2003 while the Respondent’s brief was deemed filed on the 29th of November 2007 and the two (2) briefs were adopted and relied on by learned counsel at the hearing on the 19th of January 2009 as their submissions in the appeal. We were urged by them to uphold their respective positions.
From the grounds of appeal learned counsel for the Appellants submitted that the following three (3) issues arise for determination in the appeal:-
- “Whether the learned trial judge having regards to all the circumstances of this case, had jurisdiction to hear and determine the Motion on Notice dated 13/8/97 and filed the same day when same was incompetent. This issue relates to grounds 1, and 2 of the Appeal.
- Whether the Respondents/Appellants’ Fundamental rights to fair hearing was not breached by the learned trial judge when he raised suo-moto and relied on the order of his predecessor dated 20/7/97 without affording the Respondents/Appellants opportunity of being heard on same. This issue relates to ground 4 of the Appeal.
- Whether the order of Hon. Justice A. U. Amaechi dated 20/7/98 and relied upon by the trial judge to entertain the Motion filed on the 13/8/97 by the Respondent is not a nullity having regards to the fact that the Respondent never asked for such relief, and the provision of the fundamental Rights (Enforcement Procedure) rules 1979 does not make for such prayer. This issue relates to ground 3 of the Appeal”.
On his part, at page 2 of the Respondent’s brief, the learned counsel for the Respondent set out a notice of preliminary objection to the competence of grounds of appeal 2 and 3 as well as the three (3) issues formulated for the Appellants.
In line with established position of law, since the object of the preliminary objection on the competence of the named grounds and issues is to terminate or determine the hearing of the appeal at the stage it was raised, it is necessary to consider and decide same before proceeding to look at the submissions of learned counsel on the merit of the appeal. It is expedient to do so because if the objection succeeded and was upheld the need to consider the merit of the appeal would then be overtaken by that event and therefore abate. See GOJI V. EKWETE (2001) 15 NWLR (7361 273 @ 280, OKOI v. IBIAG (2002) 10 NWL.R (776) 455 @ 468, ONYEMEH V. EGBUCHULAM (1996) 5 NWLR (448) 255, NEPA V. AWGO (2001) 7 NWLR (737) 645, UBN v. SOGUNRO (2006) 16 NWLR (1006) 504 @ 521-2.
Perhaps I should also mention here that the Appellants did not file a Reply brief in which to react or respond to the submissions and points raised on the preliminary objection. At the hearing of the appeal, the learned counsel for the Appellants, Mr. C. C. Amadi did not make reference to or even mention of the objection raised and argued in the Respondent’s brief. The preliminary objection undoubtedly raised fresh or new issues or points in the Respondent’s brief that call for or require reaction or response from the Appellants’ learned counsel. The legal consequence of the failure or option not to react or respond by way of answering the fresh/new points on the part of the Appellants’ is now trite in law. The Appellants are thereby, taken and deemed to have no answer and to have conceded such points to the Respondents. See OKOYE V. N.C. & F CO. (1991) 6 NWLR (199) 501, OKONGWU V. NNPC (1989) 4 NWLR 115, NWADIKE V. NWADIKE (19S7) 4 NWLR (56) 394, AYOLOGU V. AGU (1998) 1 NWLR (532) 129, DIGAI V. NAWCHAWG (2005) ALL FWLR (240) 41 @ 54, DAAGIR V. KWAGHKAR (2006) ALL FWLR (240) 41 @ 54, (306) 959.
However though the Appellants are deemed to have conceded to the points raised in the preliminary objection because they did not file a Reply brief, the objection would not automatically succeed for that reason alone. The objection cannot be upheld merely for the absence of a Reply brief but the court still has a duty to consider it on its merit and determine whether or not it is sustainable. See AGBABIAKA V. OKOJIE (2004) 15 NWLR (897) 503 @ 522.
In the above premises, I would review the submissions of learned counsel on the objection and then determine if it is maintainable.
Firstly, the ground of the objection is:-
“(a) That grounds 2 & 3 contained in the notice of appeal initiating the appeal did not arise from or relate to the judgment of the trial court which is appealed against”
After making reference to the judgment of the High Court at pp 67 – 78 of record of appeal and arguments of counsel in that court at pp 63-65 of the record, it was submitted by learned counsel for the issue of filing affidavit of service sworn to by the applicant before hearing the motion on notice did not arise or was not raised. He said the High Court heard the motion filed on 10th July, 1998, was addressed by both counsel and made an order therein on 20th July 1998 against which the Appellants did not appeal. It was his further submission that the said order remains valid and competent and it is wrong in law for the Appellants to now challenge it as was contemplated in ground of appeal No. 3. That the issue of the validity of the order did not arise at the hearing of the motion filed on 10th July 1998 and it is not part of the decision appealed against. The cases of STRABAG CONSTRUCTION V. UGWU (2005) 15 NWLR (949) 606 @ 616, ODU V. JOLAOSO (2005) 16 NWLR (950) 178 @ 195 & OSHIOMOLE V. F.G.N. (2005) 1 NWLR (907) 414 @ 437 were cited on the competence of an order of court. It was also submitted that a ground of appeal must arise from or relate to the judgment appealed against otherwise it would be incompetent and liable to be struck out on the authority of C.C.B. PLC V. EKPER, (2001) 3 NWLR (1022) 493 @ 508. In addition, that by Order 3, Rule 2 of the Court of Appeal Rules, 2002, grounds-of appeal are to outline the aspects of the findings and decisions against which an appellant is dissatisfied with. In the absence of such grounds, the decisions stand and no arguments would be entertained by the court to undermine them. The case of BHOJSONS PLC V. DANIEL-KALIO (2006) 5 NWLR (973) 330 was relied on the submission.
Similarly it was contended that ground 2 did not flow from the decision of the High Court and so was issue 1 which learned counsel said are liable to be struck out, relying on the cases of BALONWU V. OBI (2007) 5 NWLR (1028) 488, AGRO CHEMICALS NIG V. KUDU HOLDINGS (2009) 15 NWLR (693) 493, SALAMI V. MOHAMMED (2000) 9 NWLR (691) 469 & GOV. OF KWARA STATE V. LAFIAGI (2005) 5 NWLR (17) 139.
According to learned counsel, the Appellants did not obtain leave to raise the new issues of non-filing of an affidavit of service and of the competence of the order made on 20th July 1998 and so the new issues’ are incompetent. He relied on the cases of GOGLITTLE TAWNERY V. NWIGBO (2005) 7 NWLR (924) 298 & AKINYANJU V. UNILORIN (2005) 7 NWLR (923) 87 and argued that the order made on 20th July 1998 was an interlocutory order an appeal against which had to be filed within 14 days thereof. Sections 241, 242, 243(b) of the 1999 Constitution as well as section 24 of the court of Appeal Act and the case of NIWA v. SPDC (2007) 1 NWLR (1015) 305 were further relied on by him on the point that leave of court is a condition precedent to the exercise of the right of appeal by the Appellants against the order made by the High Court on the 20h of July 1998.
It was finally submitted that in the absence of the leave grounds of appeal 2 and 3 as well as issues 1, 2, and 3 are incompetent. We were urged to strike them out.
Let me say at the on set that the objection by the learned counsel for the Respondent as set out above is only in respect of grounds 2 and 3 of the four (4) grounds of appeal filed by the Appellants. It means that no objection was raised against grounds of appeal Nos. 1 and 4 as set but above. Issue No. 2 formulated by the learned appellants’ counsel was said to have derived from ground No. 4 about which there is no objection as pointed out above.
The law is that one competent ground of appeal is sufficient and enough to sustain an appeal, see C.S.S. BOOSHOP v. R.T.M.C.R.S. (2006) 11 NWLR (992) 530 @ 573 – 4.
It would appear therefore that even if grounds 2 and 3 to which the objection was raised were struck out. Ground 4 from which issue No. 2 was distilled would be capable of maintaining the appeal as a competent one. Be that as it may, I would now consider whether grounds 2 and 3 arose from the decision appealed against or not. For case of reference I would set out the two (2) grounds of appeal again, this time with their Particulars:-
“GROUND 2: ERROR IN LAW
The learned trial Judge erred in Proceeding to hear and determine the Motion on Notice dated 13/8/97 filed the same day for enforcement of Fundamental Right when the Condition precedent to exercising jurisdiction were not fulfilled.
PARTICULARS OF ERROR:
- By virtue of provisions of Order 2 rule 4 of the Fundamental Rights (Enforcement Procedure) Rule, there must be an affidavit of service sworn to by the Applicant before the hearing of the Motion on Notice.
- There is nothing on the record to show that the Applicant complied with this essential requirement of the law before the Motion on Notice was argued on the 9th October, 2000.
- This Fundamental defect constituted a feature in the matter that robbed the Court of its jurisdiction to entertain the matter. The entire proceeding thereof, is a nullity.”
At page 72 – 3 of the record of appeal, the High Court in its ruling which is subject of the appeal, had set out the objection of the learned counsel for the Appellants at the hearing of the motion filed on the 13th of August 1997. Put briefly the objection was to the effect that the motion was incompetent because it was filed twenty-one (21) days after leave to do so was granted in contravention of order 2 Rule 1 (2) of the Fundamental Rights (Enforcement) Procedure Rules, 1979 (FRPR 1979) which limited the tine to 14 days. It was argued that in the circumstances, a condition precedent was not fulfilled and so the High Court lacked the jurisdiction to entertain the motion.
In answer to the objection, the High Court in its ruling particularly at page 76 of the record, lines 1-19 held thus:-
It is trite law that a court of superior records to enjoined and has all the powers to have recourse to its seconds. I have before me a further Order of the 20th day of July, 1998 issued by my predecessor in office Hon. Justice A.U. Amaeshi. In the said. Order the following is contained therein.
“It is hereby ordered that the Order of Court dated 23rd day of July 1997 is to continue until further notice.”
In simple word all that this means is that until otherwise ordered by the Honourable Court, the Order of 23rd day of July, 1997 remains valid and subsisting. I must confess that having searched my said record, I am afraid I have not been able to find a further Order countering that of the 20th day of July 1998 which kept that of the 23rd day of July 1997 alife (sic) till the applicant moved his substantive motion.
I cannot now claim to have the competence to review that Order in order to accommodate the argument of counsel for the respondents that a condition precedent to the presentation of the application has been breached.”
It is very clear from the above record of appeal, the objection raised by the learned counsel for the Appellant at the hearing before the High Court was based solely on the ground that the motion was filed outside the 14 days prescribed by Order 2 rule 1 (2) of the Fundamental Rights (Enforcement) Procedure Rules 1979. The ruling of the court was made on that sole ground of objection and no other.
Now looking at the ground of appeal No. 2, it says that the High Court erred in law in hearing the motion in question when the conditions precedents to the exercise of jurisdiction were not fulfilled.
The particulars of the ground which are details of the facts that ossify the ground snow that the objection is now based not on the ground, put before the High Court, but that there was non compliance with Order 2, Rule 4 of the Fundamental Rights (Enforcement) Procedure rules 1979 which provides for the filing of an affidavit of service sworn to by the Respondent before the hearing of the motion on notice.
Without any difficulty, it can easily be noticed that the particulars which provide the meat to the barer bone of the ground do not arise from the ruling of the High Court appealed against. Without the particulars, ground No. 2 would be barren, imprecise, vague and therefore incompetent. Since the issue raised in the particulars was not one raised at the hearing of the motion in the High Court and on which that court did not make a pronouncement, then it does not arise or enure from the decision appealed against by the Appellants. For that reason, I am in agreement with the learned counsel for the Respondent that ground No. 2 on the basis of the particulars thereof did not derive from the ruling appealed against. It is therefore an incompetent ground of appeal and is accordingly struck out. See R.E.A. V. ASWAM . IND. (1991) 2 NWLR (176) 639, ONWUCHUKWU V. ONWUCHUKWU (1991) 5 NWLR (194) 739; IDIKA VS. IRISI (1988) 5 SCNJ 208, NDIC V. OKEN ENTR LTD (2004) 4 SC, (PT II) 77, AJAYI V. ASIPA (2006) ALL FWLR (306) 912 in addition to the cases cited by learned counsel for the Respondent on the point.
Ground No. 3 now. It is in the following terms:-
GROUND 3 ERROR IN LAW:
The learned trial Judge erred in law when he relied on the Order of his predecessor Hon. Justice A. U. Amaeshi dated 20/7/97 to determine this application when the said Order is invalid and a nullity ab initio.
PARTICULARS OF ERROR
- Under the Fundamental Rights Enforcement’ Procedure rules there is no provisions for extension of an Order granting leave for an Applicant to enforce his Fundamental Rights once the Applicant is out of time to file the summons on Notice within the provisions of the rules.
- The Order of the Court 20/7/97 was not based on any application before the court, and was not made pursuant to any of the provisions of the Fundamental Rights enforcement procedure Rules.
- The Order for leave to enforce Fundamental right must as a matter of law bear and have a returning date and cannot be made to be till further Notice.
- The only option opened to an Applicant who is out of time to file his Motion on Notice as required by the Fundamental Rights enforcement procedure rules, is to commence afresh proceedings.”
Put in plain and simple language, the ground along with particulars complain that the order made on 20th July 1998 invalid and a nullity ab initio for being made without jurisdiction and the High Court was wrong in law to have relied on same. It should be realized that the real complaint in the ground is not against the reference made by the High Court to the order in its ruling. The particulars of the ground amply demonstrate the actual grievance contained in the body of the ground. There is no suggestion that the High Court could not in law make reference to previous records in the motion on file in its determination of the objection by the Appellants’ counsel. That suggestion would have been legally unviable because the position of the law is that at any stage of the proceedings before it, a court is empowered and has the right to look at and consider records in its file which bind the court as well as the parties. See SOMMER V. F.H.A. (1992) 1 NWLR (219) 548, OSAFILE V. ODI (NO 1). (1990) 3 NWLR (137) 130, AGBAISI V. EBIKOREFE (1997) 4 NWLR (502) 630, WEST AFRICAN PRO. INSUR. CO V. NIG. TOBACCO CO. (1987) 2 NWLR (56) 299.
So the ground is not on the fact that the reference was made by the High Court but rather on the basis that the order referred to was made without jurisdiction. However what is manifest in this appeal is that the validity of the order made on the 20h July 1998 was not an issue raised before and dealt with by the High Court in the ruling appealed against. That issue cannot therefore be said to have arisen from the decision appealed against. I once again agree with the learned counsel for the Respondent on the point.
Furthermore, even if the ground can be tied to the ruling of that court, the order made on the 20th of July 1998 was an interlocutory one made in the course of the proceedings in the motion in question. Any of the parties not satisfied therewith had certain requirements/limitations to meet in the exercise of the right to appeal against same. The conditions to be met are that a party has to (a) Obtain leave to appeal;
(b) File the appeal within fourteen days of the order.
Any appeal said to have been filed without the fulfilment of the above conditions together, would only be a purported appeal for non compliance with the due processes of law.
An appeal not initiated by the due process and requirement of the law is an incompetent and invalid appeal. In particular an appeal filed without leave where it is necessary or filed outside the time prescribed/limited by law without leave of court would be fatally defective and incompetent. OMIGBEDIN V. BALOGUN (1975) 1 ALL NLR (1) 233, LAMAI V. ORBI (1980) 5 – 7 SC 24, OLUWOLE V. L.S.D. & P.C. (1983) 5 SC 1, AJA V. OKORO (1991) 7 NWLR (203) 260, TIZA V. BEGHA (2005) 5 SC (PT II) 1, MADUABUCHUKWU V. MADUABUCHUKWU (2006) ALL FWLR (318) 695.
In the present appeal, there is no record to show that before filing ground No. 3 which challenges the validity of the order made on 20th July 1998 leave of court which is necessary was obtained, that it was filed within the time prescribed by law or that such time was enlarged by the court for the filing. In the circumstance, the said ground is patently incompetent. All the cases cited by the learned counsel for the Respondent support that position and so the objection is “terra firma” (on firm terrain) in respect of the ground.
On the whole for the reasons set out earlier, I find merit in the objection by the learned counsel to the Respondent in respect of grounds of appeal Nos. 2 and 3. The two grounds are incompetent and therefore struck out.
The defect in the grounds is contiguous and has affected the issues said to have been formulated from them.
Issues 1 and 3 are said to have been raised from the grounds and so are consequently incompetent. See OGUNDIPE V. ADENUGA (2006) ALL FWLR (336) 266, UBA PLC V. AKPARABONG C. BANK (2006) ALL FWLR (320) 1099, EGBE V. ALHAJI (1990) 1 NWLR (128) 546, ONOMIARU V. RCC (1995) 7 NWLR (406) 214. The issues struck out.
I have before now observed that there is no objection to ground 4 from which the issue No. 2 was distilled. Even though the learned counsel for the Respondent had in his submissions said that issue No. 2 is incompetent because it was formulated from grounds 2 and 3, that position is not supported by the grounds as demonstrated earlier. Similarly, though the objection was not said by learned counsel to have affected ground of appeal No.1, since the issue No. 1 was distilled from both grounds of appeal No 1 and 2 and the latter ground had been found incompetent and struck out along with the issue 1, ground 1 is left without any issue enuring from it. In other words, with the striking out of issue No. 1, the ground No. 1 is left without an issue that is to be determined by the court.
The consequence is that in the absence of an issue raised from it, the ground is deemed abandoned. See IYAJI V. EYIGEBE (1987) 3 NWLR (61) 523 @ 528; NDIWE V. OKOCHA (1992) 7 NWLR (252) 129 @ 138-9, J.E. ELUKPO & SONS LTD V. F.H.A. (1991) 3 NWLR (179) 322. For being abandoned, the ground No. 1 is struck out. In addition, since the ground was lumped with an incompetent ground to raise a single issue which turned but to be incompetent, it is no longer a valid ground of appeal that can be considered because it is not the function of the court to sift arguments on issues raised from competent and incompetent grounds of appeal. See AYALOGU V. AGU (1998) 1 NWLR (532) 129, BAFFA V. ODILLI (2001) 15 NWLR (737) 709, SEHENDEMI V. GOV. OF LAGOS STATE (2006) 10 NWLR (987) 1 @ 28.
As I have shown above, the decision to uphold the Respondent’s preliminary objection on grounds of appeal 2 and 3 does not completely dispose of the appeal since ground 4 has not been challenged at all and issue No. 2 formulated from it has not been successfully challenged. I would proceed to consider the issue No. 2 now. Once again to ease reference, the issue is:
“(2) Whether the Respondents/Appellants Fundamental rights to fair hearing was not breached by the learned trial judge when he raised suo-motu and relied on the order of his predecessor dated 20/7/97 without affording the Respondents/Appellants opportunity of being heard on same. This issued (sic) elates to ground 4 of the Appeal.”
The arguments of the learned counsel for the Appellants are to the effect that he was not afforded opportunity to address the High Court on the order made on 20th July 1998 before reference was made to it in the ruling appealed against. It was argued that the Appellants were thereby denied a fair hearing as provided for and envisaged by Section 33 of the 1979 Constitution (material at the time). The cases of NWANKWO V. ANIETO (2002) 2 NWLR (752) 729 @ 738 & ADIGUN V. A.G. OYO STATE (1987) 1 NWLR (53) 678 @ 684 were cited on the fundamental nature of the right of a party to be given a fair hearing; in the determination of cases by the court. In addition, that failure to hear parties or their counsel on the validity of the order made on 20th July 1998 in the procedure adopted by the High Court was in breach of the constitutional provision. We were urged to answer the issue in the affirmative and allow the appeal.
For the Respondent, the issue formulated by the learned counsel which relates to the Appellants’ ground of appeal No. 4 is his issue No. 2. the issue is:-
“Whether the learned trial judge was right in relying on the order made by the Honourable Justice A.U. Amaeshi on the 20-7-98 in the respondent’s suit.
It was submitted on the issue that before the order in question was made in the motions filed on the 15th of December, 1997 and on the 10th of July, 1998, the Appellants counsel had raised a preliminary objection which was overruled. That it is too late for him to complain of breach of Appellants’ right to fair hearing and the cases of EKE V. OGBONDA (2006) 18 NWLR (1012) 506 @ 532 – 3 A.G. RIVERS STATE V. UDE (2006) 17 NWLR (1008) 436 @ 456 0- 7 & NEWSWATCH COMM. LTD. V. ATTAH (2006) 12 NWLR (993) 144 @ 170 & 172 were cited.
Learned counsel also contended that there is no record of an appeal against the order of 20th July, 1998 and the High Court did not deny Appellants’ a fair hearing by relying on it since that court had a duty to take judicial notice of the contents of the court’s records including previous orders in the same proceedings. Section 74(1)(m) of the Evidence Act and the case of NNPC v. TIJJANI (2006) 17 NWLR (1007) 29 @ 41 were relied on for the submission. We were urged by him to resolve the issue in favour of the Respondent and to dismiss the appeal.
Let me state that this position of the law on the principle of the constitutionally guaranteed right of a party in a case to be accorded and given a fear hearing is beyond argument.
The law on the principle of fair hearing is very elementary in our system of administration of justice in the country. Our courts over many years have been steadfast and did not mince words in restating and holding that the denial of the right to a fair hearing in any proceedings whatsoever renders such proceedings and any outcome thereof void and a nullity ab initio. The authorities on the point are therefore legion and include the cases cited by the learned counsel. See also GARBA V, UNIMAIDI (1986) 1 ALL NLR 124, ORUGBO V. UWA (1997) 8 NWLR (516) 255, OKOROIKE V. IGBOKWE (2000) 14 NWLR (688) 498, YAKAJE V. HAIRE (2003) 10 NWLR (828) 270, ENEBELI V. CBN (2006) 9 NWLR (984) 69.
The question that needs to be answered now is whether the reference by the High Court in the ruling appealed against to the order made on 20th July 1998 without asking the learned counsel for the parties for address on the order violated the principle of fair hearing in respect of the Appellants’ in particular.
It may be recalled that before now in this judgment, I had on the authorities cited on the point, observed that the law permits a court to make reference to its record of previous proceedings in a case and make use of same in the determination of an issue in the case. In addition to the cases cited earlier in support of the position see also ONWUKA V. OWOLEWA (2001) 7 NWLR (713) 695, I.F.A. INT. LTD. V. I.M.B. PLC (2005) 4 NWLR (930) 274, NTGERIAN NAVY V. GARRICK (2006) 4 NWLR (969) 69. In view of these authorities, the High Court was entitled to, had the power and was therefore right to refer to, make use of and rely on the previous record of the matter before it as contained in its file. The reference made by the High Court to the order of 20th July 1998 which was made in the previous proceedings of the case/motion in which the ruling appealed against was delivered, was right and did not touch, affect or breach the right to a fair hearing of the Appellants. I would like to point out that the validity or otherwise of the order made on 20th July 1998 was not the or an issue in the motion in respect of which this appeal was filed. The order had already been made long before the date of hearing of the said motion and in the absence of another competent order to the contrary, that order subsisted and remained in force or effective. From the record of appeal, the Appellants’ counsel was heard or afforded a fair hearing before the order of 20th July 1998 was made and so the issue of the Appellants being denied a fair hearing in making reference to that order is utterly misconceived by learned counsel. The High Court could not have decided the validity of that order in the motion from which appeal this appeal arose because it has no judicial power or authority to do so in law, That authority or power/jurisdiction lies with another court. There was therefore no need to hear and in fact the parties are not entitled to be heard before the High Court could refer and rely on the previous order made in the course of the proceedings in the motion before it. I had stated elsewhere that such record of the court bind both the court and the parties in such a situation. See TEXACO PANAMA INCORP. V. SHELL PET. CORP (2002) 2 SCNJ 102, ORUGBO V. UNA (2002) FWLR (1271 1024, FIBIRAH V. MINIMAH (2003) 5 SCNJ 142. The indisputable position to be discerned from the above authorities is that the Appellants’ right to fair hearing did not arise was not involved, and was not breached by the reference to its previous record by the High Court in the ruling appeal against.
Without hesitation in the circumstance, I find no merit in the submissions of the learned Appellants’ counsel on the issue because they are not supported by law. I resolve the issue in favour of the Respondent and being the sole live issue for determination in the appeal, the appeal fails.
It is hereby dismissed with costs assessed at N50,000.00 awarded in favour of the Respondent against the Appellants.
Other Citations: (2009)LCN/3138(CA)
