Chief Emmanuel Obasan & Anor. V. Mojidu Abudu & Ors. (2006)
LawGlobal-Hub Lead Judgment Report
AUGIE, J.C.A,
Paripete is one of the Ruling Houses in the Ebumawe Chieftaincy of Ago-Iwoye, Ogun State. By the “Declaration made under Section 4 (2) of the Chiefs Law, 1957, of the Customary Law regulating the Selection of the Ebumawe of Ago-Iwoye Chieftaincy”, the method of .nomination to the chieftaincy by each ruling house is as follows –
“The ruling house whose turn it is to provide a candidate shall nominate at a family meeting to be summoned by the family head a candidate for the chieftaincy to be presented by the family head to the kingmakers”. (See paragraph 5 of the Declaration – Exhibit A).
Consequent upon the demise of Oba D.M. Osiyemi, the late Ebumawe of Ago-Iwoye from Okole-Omurajo Ruling House, the Ijebu North Local Government issued a Public Notice dated 27th September 1989 (Exhibit B) calling on the Paripete Ruling House whose turn it was to present candidate(s) to fill the vacant stool of Ebumawe of Ago-Iwoye, to do so.
At a family meeting held on the 4th of October 1989, which was attended by officials of the Ijebu North Local Government including the Secretary, the following persons were nominated to fill the vacant post of Ebumawe –
(1) Prince Claudius Adetayo Adesanya
(2) Prince Samuel Ademuyiwa Banjoko
(3) Prince Solomon Osinmi Adesegun
(4) Prince Johnson Abiodun Afuwape Onanuga (See Certificate of Selection of Ebumawe of Ago-Iwoye dated 4th October 1989 – Exhibit D)
On the 9th of October 1989, the Kingmakers of Ago-Iwoye selected Prince Claudius Adetayo Adesanya as the Ebumawe Elect and presented his name to the then Military Governor of Ogun State for approval by him and the Executive Council of Ogun State. When the Plaintiffs heard that the Governor had approved the appointment of Prince C. A. Adesanya, and were taking steps to install him as the Ebumawe of Ago-Iwoye, they instituted an action against the then Head of the Paripete Ruling House of Ago-Iwoye, Ashiru Ogunbajo (Deceased) as 1st Defendant; the said C. A. Adesanya (Deceased) as the 2nd Defendant and the 3rd – 5th Respondents herein, contending as follows in paragraph 18 of their original Statement of Claim, that –
(a) The purported nomination of four (4) persons by the Paripete Ruling House to fill the vacant position of the Ebumawe of Ago-Iwoye is null and void.
(b) The Kingmakers of Ago-Iwoye have no authority whatsoever to have selected one out of the four candidates presented.
(c) The purported selection by the Kingmakers and the approval given to the whole exercise by the 5th Defendant is null, void, and of no effect.
(d) The purported selection of the 2nd Defendant as the Ebumawe of Ago-Iwoye is null, void and of no effect.
Between the 18th of September 1990 and the 2nd of April 1998, when Hon. Justice B.O. Ogunade of the High Court, Ijebu-Ode, Ogun State delivered his Judgment, the following occurrences took place which ultimately affected the composition of the parties and the substance of the Appellants’ claims –
a) The initial 1st Defendant died, which necessitated the joinder of the present 1st & 2nd Respondents on the 9th of November 1995, and the consequent amendment of the Statement of Claim.
b) The initial 2nd Defendant, Prince C. A. Adesanya who had been installed the Ebumawe during the pendency of the action died. The lower Court later removed his name and allowed the Statement of Claim to be amended accordingly.
c) The 3rd – 5th Respondents raised a number of objections to the continuation of the suit on the ground that ‘the reliefs sought cannot survive the death of the deceased Oba, which were overruled by the lower Court in several Rulings contained at pages 111 – 122, 202 – 205 & 261 – 268 of the Records.
d) The appeal lodged in this Court on the issue of survival of cause of action was withdrawn and dismissed on the 29th of June 1995.
e) The 3rd – 5th Respondents installed another Oba from another Ruling House, and the Appellants instituted another Suit No. HCB/2/92 against the said Oba & the 3rd-5th Respondents, which was adjourned sine die. The application of the said Oba to join this suit was withdrawn at the lower Court on the 26th of February 1997.
f) The 2nd Plaintiff died and his name was struck out by the lower Court on the 12th March 1998.
At the end of the protracted interlocutory applications and amendments of pleadings, the Appellants’ Amended Statement of Claim dated 4th March 1997 had only two surviving reliefs from the original five reliefs claimed, that is –
i) A declaration that the purported selection and appointment of C. A. Adesanya (deceased) as the Ebumawe of Ago-Iwoye is null, void and of no effect.
ii) An order nullifying the selection and appointment of C. A. Adesanya (deceased) as the Ebumawe of Ago-Iwoye.
The 1st & 2nd Respondents who were substituted for the deceased defendants did not file any defence.
The 3rd – 5th Respondents however contended as follows in their Amended Statement of Defence dated 17th December 1996 –
i) That this action is an abuse of Court process.
ii) That the cause of action in this suit does not survive to the surviving Defendants after the death of Oba C. A. Adesanya.
iii) That the appointment of Oba C. A. Adesanya as the Ebumawe of Ago-Iwoye was valid in law.
On the 17th of December 1996, the lower Court directed “Counsel for the parties pursuant to Order 35 Rule 2 to prepare the issues involved in this suit for settlement by the Court”, and Ruled as follows ‘In the 3rd of April 1997 –
“The parties having agreed on the basic facts of the nomination of the several candidates and the selection by the Kingmakers of one of the candidates presented by the Ruling House, and also upon the fact that the only candidate selected and installed had died during the pendency of this action, I hereby direct that trial be conducted upon the following issues formulated by the learned Counsel for the Plaintiffs and agreed by learned Counsel for the 3rd – 5th Defendants; namely: (Italics mine)
- Whether the reliefs sought by the Plaintiffs survive the death of Oba C. A. Adesanya who was initially the 2nd Defendant.
- If the action survives the death of Oba Adesanya, then –
a) What is the correct interpretation of the clause 5 of the Registered Declaration of the Customary Law regulating the selection of the Ebumawe of Ago-Iwoye and Section 15 of the Chiefs Law Cap 20 Laws of Ogun State?
b) In the light of the interpretation of the relevant sections of the law, where there are more than one candidate for the stool of the Ebumawe of Ago-Iwoye should the Ruling House nominate all the candidates or only one candidate for presentation to the Kingmakers?
c) In the light of the interpretation of the relevant sections of the law, whether the nomination of all the four candidates by the Paripete Ruling House and the selection of one of them, namely: – C. A. Adesanya (now deceased) by the Kingmakers rendered the installation of the said C. A. Adesanya null, void and of no effect.
d) Whether the 3rd to 5th Defendants can rely on their installation of another Oba from another family entirely during the pendency of this suit to defeat the surviving reliefs sought in the Amended Statement of Claim.
The above-mentioned issues being mere issues of law, it is hereby ordered that the conduct of the suit shall be without oral evidence but by the address on the issues by both Counsel for the Parties”.
Before the address of counsel, the lower Court admitted the following documents as Exhibits by consent of parties –
(a) Declaration regulating the selection of the Ebumawe of Ago-Iwoye – Exhibit A.
(b) Public Notice issued by the Secretary, Ijebu-North Local Government – Exhibit B.
(c) Minutes of Meeting of the Paripete Ruling House – Exhibit C.
(d) Certificate of Selection by the Paripete Ruling House – Exhibit D.
After the address of counsel, Judgment was “reserved till 19/2/98”.
However, on that date the lower Court informed counsel that in the course of writing the Judgment he discovered an issue which would warrant further address from counsel, namely: “what order should the Court make in this suit having regard to the state of the Amended Statement of Claim amended on the 4th of March 1997 viz a viz (sic) Exhibit A”. The suit was adjourned to the 5th of March 1998 for further address, and on that day, the Appellants’ counsel applied to have the name of the deceased 2nd Plaintiff struck out, and for leave to “further amend the Statement of Claim”.
The 3rd – 5th Respondents opposed the amendment, which sought to add a new paragraph 191(1) in the Further Amended Statement of Claim that read-
“The Plaintiff will rely at the trial of this action on the following documents –
j) The Registered Declaration made under Section 4 (2) of the Chief Law 1957 of the Customary Law Regulating the Selection of the Ebumawe of Ago-Iwoye Chieftaincy approved on 21st July 1959 and registered on the 24th July 1959 (which the 3rd Defendant is hereby given notice to produce).
In its Ruling delivered on the 12th of March 1998, the lower Court held –
“In the net result, I hold that the motion is well grounded. The amendment sought in paragraph 19(j) of the Proposed Further amended Statement of Claim is granted. The Plaintiff shall file and serve the Further Amended Statement of Claim within 14 days from today. The defendants shall be at liberty to file a Further Amended Statement of Defence limited to the amendment, if so advised”.
Consequent upon the above Ruling, the Appellants filed their Further Amended Statement of Claim dated 12th March 1998. The 3rd – 5th Respondents’ application to amend their Statement of Defence came up for hearing and was granted on the 2nd of April 1998 when Judgment was to be delivered. The Judgment was stood down to enable them file the Further Amended Statement of Defence, wherein they averred in paragraph 12 –
“That notwithstanding the fact that Paragraph 5 of the Chieftaincy Declaration provides for the nomination of one candidate, the Plaintiffs’ Ruling House has by conduct and action duly waived the right to nominate only one candidate in that:
i) The Plaintiff attended the nomination meeting of 4/10/89.
ii) The Plaintiff and other members of the Ruling House were not only present but also voted at the meeting in which late Oba C. A. Adesanya was nominated and later presented to the Kingmakers for approval”.
The Appellants immediately filed a “Reply to the Further Amended Statement of defence” contending that the Plaintiff did not nominate C. A. Adesanya (deceased)”; that he and other members “were not given the opportunity to vote for a candidate of their choice out of the four persons nominated by the family; that he and majority of the “authentic members” of the family protested the procedure adopted; and that he can not waive the Customary Law of Ago-Iwoye which regulates the selection of the Ebumawe of Ago-Iwoye and which the Kingmakers and all the Defendants must comply with.
In his Judgment delivered that same day, 2/4/98, Ogunade, J., the third Judge to handle this matter, held as follows @ p. 438 of the Record –
“If my learned brother Adenubi, J. and Sodeke, J., made mistake and gave wrong decisions that his action survives the 2nd Defendant Oba Adesanya, the decision is binding unless and until set aside on appeal or in proceedings instituted for that purpose. I do not propose to consider the alternative submissions of the learned counsel – – I therefore resolve the first issue in favour of the Plaintiffs and hold that this action and reliefs sought survived the 2nd Defendant – – “.
He further held as follows @ pp. 443 – 444 –
“Applying the interpretation of the clause “a candidate” as in Exhibit A In. OYESILEVS. EFFUNUGA supra to that same clause in Clause 5 of Exhibit A in the instant case I hold that the Ruling House should have nominated only ONE candidate. – – – – After the four names had been mentioned and supported, the four names should have been submitted to the vote of all members present at the meeting and the candidate who had the hi hest vote would have emerged as-
“a candidate for the Chieftaincy to be presented by the family head to the Kingmakers”.
– The so-called nomination of the 4 candidates by the Paripete Ruling House therefore is improper. – – –
The presentation of the 4 names by the head of the Ruling House is not according to the law. – – Under the law the only duty of the Kingmakers is to approve or reject the candidate nominated for their approval by the Ruling House. By proceeding to make a choice among the 4 candidates, the Kingmakers were usurping the function of the Ruling House”.
He concluded as follows @ p. 445 –
“A breach of this mandatory provision renders the proceedings of the Kingmakers invalid and voids thus making the selection and appointment by them of C A. Adesanya void. For the same reason, the eventual approval of C. A. Adesanya (Deceased) as the Ebumawe of Ago-Iwoye is of no legal consequence’: (Italics mine)
And proceeded to formulate and add a 3rd Issue @ p. 447, as follows –
“Both counsel had made copious submissions on this Issue of estoppel or waiver raised by the 3rd
– 5th Defendants in paragraphs 10 & 12 of the Further Amended Statement of defence. I think I shall be acting within the rules if I should amend the settled issues pursuant to Order 35 Rule 4, Rules of the High Court of Ogun State by adding a third issue, namely: (Italics mine)
- Whether the Plaintiffs are not estopped in law to now challenge the validity of the nomination exercise by the Ruling House in which the names of 4 candidates, one of whom was Oba C.A. Adesanya, were forwarded by the Head of the family to the Kingmakers having agreed at the nomination meeting that all the nominated candidates should be presented to the Kingmakers”.
It was on this issue of estoppel/waiver that the lower Court found against the Appellants and struck out the action holding as follows @ p. 452 –
“There is no doubt that the 1st Plaintiff had knowledge of the fact that the family head required to present only one candidate at the time he appended his signature to Exhibit D. I am of the considered view that by his conduct he had tacitly encouraged the head of family to act improperly. He now seeks the equitable relief of Declaration that that which he had permitted to be done was irregular. He is required to comply with the equitable maxim of “he who comes to equity must come with clean hands;” he had conducted himself in a manner contrary to that maxim. – – – In effect, although I have found that the action of the family in presenting four nominated candidates instead of nominating one candidate is not in compliance with the Customary Law regulating the Chieftaincy in question, the Plaintiffs are not entitled to the reliefs sought by their Further Amended Statement of Claim. In the circumstances, I believe the appropriate order I should make is one out the Plaintiff’s action. In sum, I strike out the Plaintiffs’ action”.
Dissatisfied, the Appellant filed a Notice of Appeal containing two Grounds of appeal, but formulated three Issues for Determination in his brief of argument prepared by J.A. Badejo, Esq., as follows –
- Whether the learned Trial Judge was right to have raised the issue of estoppel and waiver suo motu in his Judgment by single handedly amending the issues earlier settled by him and without giving the Parties an opportunity to call evidence to resoive the factual conflict.
- Whether the mandatory Provisions of the registered Declaration embodying the Customary aw governing the Ebumawe Chieftaincy title of Ago-Iwoye can be waived by a member of the family.
- Whether the Plaintiffs are estopped in law from challenging the validity of the nomination exercise by the Paripete Ruling House in which the names of four candidates, one of whom was Oba C.A. Adesanya (deceased) were forwarded by then Head of the Paripete Ruling House of Ago-Iwoye to the Kingmakers for consideration.
The 1st – 2nd Respondents did not file any brief but were in Court at the hearing of the appeal. The 3rd – 5th Respondents Formulated only one Issue for Determination in their own brief prepared by O. A. Koleowo, Esq., that is-
“Whether the Appellant is estopped in Law from challenging the validity of the nomination exercise by the Paripete Ruling House in which the names of four candidates [one of whom was Oba C. A. Adesanya (Deceased)] were forwarded by the then head of the Paripete Ruling House of Ago-Iwoye to the kingmakers for consideration having agreed at the nomination meeting that all the nominated candidates should be presented to the kingmakers”.
The Supreme Court and this Court have times without number reiterated the principle that it is inappropriate to raise more issues for determination than the grounds of appeal filed – see Adedipe v. Theophilus (2005) 16 NWLR (pt. 951) 250; Bossa v. Julius Berger Plc (2005) 15 NWLR (pt. 948) 409 & M.B.N. Plc. v. Nwobodo (2005) 14 NWLR (pt. 945) 379 SC. The principle is so trite that it is surprising that counsel still make the same mistake. Be that as it may, the Courts have deliberately shifted away from the narrow technical approach to justice which characterized some earlier decisions. The prevailing attitude is to pursue the course of substantial justice. See Bossa v. Julius Berger Plc (supra), where this Court considered one of the two issues the Appellants formulated from the one ground of appeal filed so as to hear the appeal on the merits. In this case, the Appellant’s Issue 1 encapsulates the complaint in Ground 2 of is Grounds of Appeal, and his Issue 3, which is virtually the same with the sole issue formulated by the Respondents, is in consonance with the complaint in Ground 1. I will therefore adopt them in dealing with this appeal, more so as the issue of waiver is covered therein.
On Issue I, the Appellant submitted that the issue of waiver was included as paragraph 12 in the Further Amended Statement of Defence filed by the 3rd – 5th Respondents on the day judgment was delivered, and even then, that what was pleaded was waiver and not estoppel. It was further submitted that waiver is a question of fact which must be proved by evidence; that the lower Court merely assumed that the Plaintiffs were aware of the illegality of the action of the Paripete Family on 4th October 1989; that the lower Court ignored the Reply to the Further Amended Statement of Defence filed on the same 2/4/98, which re-emphasized that the Appellant and other members of the family were not given the opportunity to vote for a candidate of their choice out of the four persons nominated by the family and that majority of members protested the procedure adopted; and furthermore, that these conflicts called for a resolution by evidence which the lower Court failed to avert it’s his mind to, citing Falobi v. Falobi (1976) 9 & 10 S.C. 14 & Olu-Ibukun v. Olu-Ibukun (1974) 1 ANLR PART 1513 @ 518.
The Appellant further argued that Order 35 Rule 4 of the High Court Rules allows the lower Court to formulate and consider issues suo motu before Judgment, and not during the delivery of Judgment, citing Obijuru v. Ozims (1985) 2 NWLR (pt. 6) 167 @ 175 SC; that any submissions or subsequent amendments of Pleading that are not based on issues formulated earlier by the lower Court should have been disregarded by the lower Court; that making an issue of estoppel and waiver is tantamount to changing the substance of litigation fought by the Parties for over 8 years on the date of Judgment; and that failure to allow the Plaintiff to address the lower Court on the issue formulated suo motu is an infringement of Plaintiff’s Constitutional guarantee of fair hearing as enshrined in the 1979 Constitution, which was then in operation. It was further submitted that if evidence had been called or counsel had been given the opportunity to address the Court on the issue, the waiver pleaded would ha e been dismissed as a non-issue, citing Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566 @ 581; that the equitable doctrine of estoppel must be specifically pleaded by a litigant who wish to rely on it; that no evidence was called to prove the alleged waiver while the issue of estoppel formulated by the Defence Counsel were abandoned at the time issues were formulated by the lower Court; and that the 1st & 2nd Respondents who represent the Paripete Ruling House did not file a defence nor raise the issue of waiver or estoppel, therefore it does not lie in the mouth of the 3rd – 5th Respondents who are merely moderators and not members of the family to raise waivers or estoppel on issues within the authority of the family. The 3rd – 5th Respondents however argued that the lower Court was right; that it exercised its discretion for the purpose of determining the real question in controversy between the parties under Order 35 Rule 4 of the High Court Rules; that the case of Obijjuru v. Ozims (supra) is irrelevant because the Court in that case was not interpreting Rule 4, and there was no settlement of issues; that the parties in this case agreed to trial by settlement of issues, and both counsel made copious submission on the issue of waiver so the Plaintiff/Appellant is estoppel from complaining that he was not heard on the issue of estoppel or that the trial Judge did not give him fair-hearing.
The Appellant however countered in his Reply brief that issues were settled by the lower Court as far back as the 3rd of April 1997; and that these issues were all purely questions of law, which required no evidence to resolve any dispute in fact. Hence, the lower Court ruled as follows @ P. 370-
‘The above mentioned issues being mere issues of law, it is hereby ordered that the conduct of the suit shall be without oral evidence but by the address on the issues by both counsel for the parties.”
It was further submitted that the amendment to the 3rd – 5th Respondents’ Statement of Defence which introduced ‘WAIVER’ in Paragraph 12 thereof was granted by the lower Court on the day Judgment was delivered on 2/4/98; that the Appellant promptly on the same day of Judgment filed a Reply to the Further Amended Statement of Defence and promptly joined issues with the Respondents on the issue of waiver; that there was absolutely no evidence that counsel addressed the Court or called evidence before the lower Court delivered its Judgment on the day the latest pleadings were filed; that waiver is a question of fact, which cannot be decided on pure law or contested facts as is apparent on the face of the record before the lower Court; that it was too late in the day for the lower Court to have introduced waiver and estoppel suo motu in his Judgment as issues to be determined; and that the case of Obijuru v. Ozims (supra) is clear beyond all argument that the lower Court can only amend or add to issues before Judgment, also citing Maximum Ins. Ltd. v. Owoniyi (1994) 3 NWLR (pt. 331) 178.
The Appellant submitted in the main brief that “this first issue is sufficient for a determination of this appeal decisively in favour of the Appellant”. Without hesitation, I have to say that I share the same view. Justice must not only be done but also be seen to have been done. Anyone who watched the proceedings in this case or any one who is told that the lower Court not only delivered Judgment on the same day pleadings were amended and without resolving the issues joined therewith, but also proceeded to suo motu formulate a new issue in it that was resolved against the Appellant without the required proof by evidence and address by counsel would certainly shake his or her head, and say “Justice has definitely not been done in this case”.
To start with, an amendment of a pleading takes effect not from the date it is made but from the date of the original document, therefore if leave is granted, and the pleadings duly amended, the action continues as though the pleadings had been in the original form right from its original date – see Ogurna v. I.B.W.A (1988) NWLR (pt. 73) 658 5C, & Ezinwa v. Agu (2004) 3 NWLR (pt. 861) 431. To state it simply, an amended pleading takes effect from the date of and in place of the initial pleading filed, and the effect thereof is that the original pleadings become irrelevant for purposes of joinder of issues in the suit. See Oguma v. I.B.W.A (supra), where the Supreme Court also held that once pleadings are amended, what stood before amendment is no longer material before the Court and no longer defines the issues to be tried. In this case, it was on the same day Judgment was delivered, 2nd April 1998 that the 3rd – 5th Respondents Further amended their Statement of Defence to aver that the Appellant’s Ruling House waived their right to nominate only one candidate because the Appellant and other members were not only present but also voted at the meeting in which late Oba C. A. Adesanya was nominated to fill the vacant post. That same day, 2nd April 1998, the Appellant filed a Reply wherein he averred that he did not nominate the late Oba and was not given the opportunity to vote for a candidate out of the four persons nominated by the family. Issues were therefore joined by the parties on the question of whether the Appellant by his conduct had waived his right to nominate only one candidate.
The lower Court however turned a blind eye to the Appellant’s Reply to the 3rd – 5th Respondents’ Further Amended Statement of Defence, and made no attempts whatsoever to resolve the issue that arose as fallout from the amendment of pleadings. No doubt, as the Appellant rightly submitted the question of whether he waived his right or not is one of fact, which must be proved and no evidence was adduced in this case. The lower Court merely directed parties to prepare issues for settlement by the Court, and ruled –
“The above-mentioned issues being mere issues of law, it is hereby ordered that the conduct of the suit shall be without oral evidence but by the address on the issues by both counsel for the Parties”.
There is nothing wrong with the above order. A suit may center on certain legal questions that arise from the facts admitted or found as proved. It is by the process of settlement of issues that isolation of the real issues in a case is effected. They are said to be settled when they have been so isolated for determination.
The Rules of Court on Settlement of Issues are clearly set down in Order 35 Rules 1 to 4 of the High Court Rules of Ogun State, thus –
- At any time before or at the hearing, the Court may, if it thinks fit, on the application of any p party, or of its own motion, proceed to ascertain and determine what are the material questions in controversy between the parties, and may reduce those questions into writing and settle them in the form of issues which issues when settled may state questions of law on admitted facts, or questions of disputed facts, or questions partly of the one kind and partly of the other.
- The court may, if it thinks fit, direct the parties to prepare such issues, and the same shall be s settled by the Court.
- The Issues may be settled without any previous notice at any stage of the proceedings, at which all the parties are actually present, or at the hearing. If otherwise, notice shall be given to the parties to attend at the settlement of issues
- At any time before the decision of the case, if it shall appear to the Court necessary for the purpose of determining the real question or controversy between the parties, the Court may amend the issues on frame additional issues n such terms as it shall seem fit. (Italics mine)
The 3rd-5th Respondents argued that the case of Obijuru v. Ozims (supra) is irrelevant to this case because that Court was not interpreting Rule 4 applied by the lower Court in this case, and there was no settlement of issues at all by the parties in that case. Obviously, they did not read the above Rules and the decision of the Supreme Court in Obijuru v. Ozims (supra) well enough, or else they would not have spouted such an argument that is clearly misconceived and lacking in merit. The operative words in Order 35 Rules 1 & 4 of the High Court (Civil Procedure) Rules are – “At any time before or at the hearing” and’ At any time before the decision of the case”, and the decision of the Supreme Court in Obijuru v. Ozims (supra) is not only apt but hits the nail on the head as it relates to this case. In that case, Obijuru v. Ozims (supra), Bello, JSC (as he then was) stated as follows –
“By the above Rules, proceedings for Settlement can only commence at any time before or at the hearing of a case and certainly not when a Judge is delivering his judgment in the case”. (Italics mine).
No question about it, the lower Court definitely erred when it formulated the 3rd issue while delivering its judgment. Now, what is the effect of that error? It is trite law that issues must be joined by the parties to a suit and they should be heard upon those issues by the Court. Similarly, when an issue is raised suo motu by the Court, the parties should be invited by the Court to address on it before reaching a decision – see Mojekwu v. Iwuchukwu (2004) 11 NWLR (pt. 883) 196 SC; Din v. A.-G., Fed. (2004) 12 NWLR (pt 888) 459; Adebayo v. Oja-Iya C.B. (Nig.) Ltd. (2004) 11 NWLR (pt. 885) 57 & Kraus Thompson Org. Ltd. v. University of Calabar (2004) 9 NWLR (pt. 879) 631, where the Supreme Court held thus @ 651 to 652 –
“There can be no doubt that Courts of law have the power to raise suo motu relevant issue or issues which are not before the Court for the determination of the case. In exercising this power, however, the Court must adhere strictly to the principles of natural justice and in particular, to the audi alteram partem rule. Accordingly, the law is also well settled that on no account should a Court raise a point or issue suo motu no matter how clear it may appear to be, and then proceed to resolve it one way or the other without inviting the parties to address it on the point. If it does so, it will be in flagrant abuse and breach of the aggrieve party’s right to fair hearing as entrenched in the Constitution – In other words, when a Court for any compelling reasons finds it necessary and particularly in the interest of justice, to raise a point or issue suo motu, the parties must be given an opportunity to be heard on such point or issue, particularly the party that may be prejudiced as the result of the point raised suo motu”.
In other words, where an issue is raised suo motu by a Court, it must hear arguments from the parties thereon before reaching a decision on the issue, and where a Court fails to do so, the decision so reached is liable to be set aside on appeal because it will be in breach of the party’s right to fair hearing for the Court to proceed to resolve the issue one way or the other without hearing parties on it – see Adebayo v. Oja-Iya C B. (Nig.) Ltd. (supra).
The law is clear that where it is found that the right to fair hearing has been breached, the entire proceedings are a nullity.
See Orugbo v. NNA (1997) 8 NWLR (pt. 516) 255 where the Court held as follows-
“It is the law that once it is duly established that the right to fair hearing – – has been breached in a judicial proceedings, its breach vitiates the entire proceedings. Therefore when the appellate Court finds that the right of fair hearing is breached, it shall have no alternative but to allow the appeal”.
In this case, it is most unfortunate that a trial that spanned over 8 years would have to end this way – be set aside. But there is no way to go around the law, once the right to fair hearing is breached, it is irrelevant whether the decision arrived at subsequently is correct or not. In this regard, it will not be necessary in this appeal to consider the other issue for determination. This is because it remains a substantive issue, and addressing it in this appeal may pre-empt the decision of the lower Court – see Odutola & Anor v. First Bank of Nig. Ltd. & Anor (2000) 4 NWLR (pt. 653) 341.
The end result of the foregoing is that the appeal succeeds and is allowed. The Judgment of the lower Court delivered on the 2nd of April 1998 is hereby declared null and void and is therefore set aside. The case is remitted to the High Court of Ogun State or trial de-novo. There will be no order as to costs.
Other Citations: (2006)LCN/1925(CA)
