Christiana Ugwu & Anor V. Maria Onyekweli (2008)
LawGlobal-Hub Lead Judgment Report
SIDI DAUDA BAGE, J.C.A.
This is an appeal by the Defendant/Appellants against the refusal to hear their motion by Justice M.O. Chidobem sitting in the High Court of Enugu State, Holden at Nsukka Division, on the 24-1-2005. The motion on notice was brought pursuant to Order 24 Rule 15 of the High Court Rules 1988. The motion reads thus:-
“TAKE NOTICE that the Honourable Court will be moved on Tuesday the 25th day of May 2004 at the’-hour of 9 ‘O clock in the forenoon or soon thereafter as counsel for the defendant/respondents may be heard praying the court for an Order setting aside the judgment delivered in this Suit on 11/03/04. Dated at Enugu this 3d day of May 2004”.
This motion was supported by a 16 paragraph affidavit, and a 6 paragraph further affidavit, for an apt comprehension of this appeal, it is pertinent to reproduce both the affidavit and the further affidavit in pages 61 and 63 of the record of the proceedings.
AFFIDAVIT IN SUPPORT OF MOTION
(1) That I am a counsel in the law firm of Dr. M.E. Atogwu (SAN).
(2) That I am conversant with the facts of this case and I have the counsel of the applicants to swear to this affidavit.
(3) That the applicants were aggrieved when our chambers received a copy of the Assignment Order made by the Chief Judge of Enugu State in this Suit directing this Honourable Court to conclude this Suit in Enugu Judicial Division.
(4) That as a result our Chambers filed a Suit under the fundamental Right Enforcement Procedure Rules 1979, challenging the action of the Chief Judge.
(5) That Suit E/364M/2003 Christiana Ugwu & Ors Vs. Attorney General Enugu State was heard on 12/11/2003 when Honourable Justice Eddy Onyia make an Order of stay of proceedings in this Suit pending the determination of the application before it.
(6) That the Attorney General of Enugu State was notified about this Order of the court immediately by service on them of a copy of the said Order together with the motion on notice. The said Order is annexed here with and marked Exhibit ‘A’.
(7) That the Attorney General was represented on 25/11/03 when the motion on notice was moved without objection from the respondent.
(8) That ruling that application was delivered on 24/02/04 with the court dismissing our application.
(9) That when I came back for this court to obtain a fresh date for the Suit from the Registrar I was informed that judgment had been delivered already.
(10) That our Chamber was of the firm belief that the Attorney General had notified the court of the Order of Justice Eddy Onyia staying proceedings in this Suit and this had no cause to attend court for the hearing of this case.
(11) That our non appearance in court for the hearing of this case was due to our honest belief that the then subsisting Order made by Honourable Justice Eddy Onyia would be obeyed.
(12) That our Chambers and the applicants did not know that hearing was being conducted inspite of this Order for stay of proceedings.
(13) That it is a grave injustice for the applicant to be denied an opportunity to be heard in this Suit.
(14) That the applicants have a good defence to the claim of the plaintiff and are prepared to appear before this court now that the court has ruled that the Chief Judge had powers to transfer this Suit to Enugu Judicial Division.
(15) That setting aside the judgment obtained on 11/03/04 will only served the cause of justice, equity and fair play.
(16) That I make this oath in good faith believing the content to be true and correct.
Appellant also at page 63 of the record of proceedings filed their further affidavit in support of motion for setting aside of judgment.
FURTHER AFFIDAVIT
(1) That I am the 3rd Defendant/Applicant in the motion for setting aside of the judgment delivered in the aforesaid Suit in default of our appearance.
(2) That by virtue of my position aforesaid, I am very conversant with the facts of this case.
(3) That I have the oral consent and authority of the 1st Defendant/Applicant to depose to this affidavit for and on her behalf.
(4) That by the time our lawyers filed this action we had not obtained a certified copy of the said default judgment.
(5) That we have now obtained a certified copy of the judgment which is herewith attached as Exhibit ‘B’.
(6) That I depose to this affidavit in good faith believing same to be true and correct according to the Oaths Act of 1990.
The motion was not heard. Instead Justice Chidobem at page 64 of the record of proceedings, on the 24-1-2006, Minuted as follows:-
“A.C.R., I have read the Judgment of His Lordships C.C. Nweze and considered same sound and final.
Defendants were given enough opportunity to appear for their defence by the hearing notices issued after the Assignment order and the case began. To my mind any other High Court is functus officio in this Suit.
Defendants can appeal against the Judgment if they deem it necessary”.
Dissatisfied with the refusal to hear this motion the appellant appealed to this court filing a notice of Appeal dated the 9th day of February 2005 accompanied by four grounds of appeal. As per the rule of this court, parties learned counsel filed and exchanged their respective briefs of arguments. In the appellants brief three issues are formulated from the four grounds of appeal as aforesaid, while the respondents counsel also formulated three issues.
The three issues formulated by appellants’ learned counsel are:
(1) Whether the refusal by the Learned Trial Judge of the Enugu State High Court who also doubled as the Administrative Judge of the Nsukka Judicial Division to fix the appellants motion on notice dated 3/5/2004 and filed by the appellant, seeking to set aside the default judgment delivered against them on 11/3/2004 for hearing and determination or assigning same to another Judge of that Judicial Division for hearing and determination is not tantamount to a denial of the appellants right to fair hearing (Grounds one and two)
(ii) Whether the decision or ruling or Order or directive or decree or recommendation etc. made by the Trial Judge of the Court below which touched on the merits of this motion on notice and the default Judgment sought to be set aside by this motion without hearing the appellant, and which consequentially foreclosed the hearing of this motion by the same Learned Trial Judge or any other Judge of Enugu State High Court is not also a denial of the Appellant right to fair hearing (Grounds two and three)
(iii) Whether a default Judgment delivered by a Judge of the Enugu State High Court without hearing his or their evidence cannot in a proper case be set aside by the same Judge who delivered it or by any other Judge of Enugu State High Court (Ground four).
The Respondents on their part raised three issues for the determination of this appeal and they are:-
(i) Is there a competent appeal.
(ii) Was the judgment of the Hon. Justice C.C. Nweze delivered on 11th March 2004 a final judgment.
(iii) Were the appellants as defendant in the court below denied their rights to a fair hearing.
After perusing through the records, the grounds of the appeal, the minutes in dispute, and the issues identified by each party in the appeal, I am inclined to be guided by those issues formulated by the respondents counsel, in the treatment of this appeal, not only because of their being all encompassing, they are quite clear, and can dispose of the appeal.
It is the contention of the learned counsel of the appellant under issue one that the refusal by the learned trial Judge of the court below, to hear the appellants motion or assigning same to another Judge, or court, for hearing and determination, is a clear case of total failure of trial, which is also tantamount to denial of fair hearing.
He also submitted that the law imposes an overwhelming legal duty on any court of law or tribunal to hear and determine any motion properly brought before it and any deviation from this is a breach of the applicants’ right to fair hearing. To buttress his contention the learned counsel cited and relied upon a number of legal authorities including:-
Nokoprise Intermark Company Ltd Vs. Dobest Trading Corporation Inc. (1997) 9 NWLR (pt 520) 334 at 344 paragraphs D – E. Sunday Eguamwense Vs. James I. Amaghizenwe (1986) 5 NWLR (pt. 41) 282 at 292 paragraph A. Mogil production Nigeria Unlimited & Anor v. Chief Simon Monokpo & Ors (2004) 115 LRCN 3016 at 3056 – 3058.
In his response to issue No. I, the respondents counsel maintained that there was no denial of fair hearing on the appellant, by the refusal of the learned trial Judge of the Court below to hear the motion or assigning same to another Judge, or court, for hearing Learned counsel argued that, the judgment of Nweze J., being a final Judgment on the merit, the court is functus Officio with respect to the Suit, and cannot set aside the Judgment.
The remedy open to the appellants is to appeal against the decision of the 11th of March 2004.
Looking at the claim of denial to fair hearing by the appellant, in respect of the refusal to hear his motion, by Chidobem J., has it finally dispose of the rights of the appellant. If it does, then I think it ought to be treated as a final Order and consequently constituted a breach to the appellant right to fair hearing. And if it does not, then in my opinion, it is an interlocutory Order. The test to apply here is whether the rights of the party is finally determined by the Order appeal against.
The test, as expounded in Ebokam Vs. Ekwenibe & Sons, (1999) 7 SCNJ 77, is that an Order or Judgment is final when the Order or judgment given by the Court is such that the matter would not be further brought back to itself. This test operates whether or not the Order or judgment is wrong or whether an appeal court may Order the matter to be sent back for a hearing or rehearing. The time of examining the test is when the Order or Judgment is given. See: Ebokam v. Ekwenibe and Sons (Supra) at page 95.
But where the decision only dispose of an issue or Issues in the case, leaving the party to go back to claim other rights in the Court, then that decision is interlocutory. See: Ebokom v. Ekwenibe & Sons (Supra) at page 87.
From the above, the appellant by the minute of the Judge, to Assistant Chief Registrar, is interlocutory and the appellant is not left without a remedy, therefore, there is no breach of his right to fair hearing.
Having said so, my answer to the Issue No.1 is that, appellant’s right to fair hearing is not breached, as he is still left with a remedy. I therefore resolve this issue in favour of the respondents.
On Issue No.2, the appellants counsel contended that it is an aggravated degree of breach of the sacred rule of fair hearing of audi alteram partem also enshrine in Section 33 (1) of the 1999 Constitution of the Federal Republic of Nigeria, for a Court of Law to refuse to hear a motion before it and still go ahead to make any comment or pronouncement or decision, decree or directive or recommendation on the merits or substance of such motion without hearing the parties especially the applicant. In support of this contention Learned Counsel cited the cases of Amadi Vs. Thomas Aplin & Co. Ltd (1972) 4 SC; 228, and Adeyemi v. Ike Oluwa (1993) 9 SCNJ (pt.2) 293 at 300 lines 24 -31.
He further submitted that it is a cardinal principle of the administration of justice and quite mandatory and impetrative that a court must make a decision and pronounce on any application before it as failure to do so constitutes a breach of the principle of fair hearing and this must always be done in accordance with procedures laid down by law otherwise the court ceases to be a court of law but becomes a kangaroo court. On this issue the appellants counsel cited and relied on judicial authorities including:-
Afro Continental (Nig) Ltd v. Co-operative Association of professionals Inc (2003) 105 LRCN 513 at 522 – 526 paragraphs K & V. Onyekwuluje Vs. Animashaun (1996) 36 LRCN 488 at 497 paragraph E.
On Issue NO.2, the respondents Counsel in his answer said the appellant cannot lay a claim of Audi Alteram Partem. In the Instant case the defendant now appellant took full part in the trial when plaintiff fielded three witnesses until the presiding Judge was transferred out of the Judicial Division and an application for an assignment Order was made to enable the presiding Judge complete the hearing and determination of the Suit. The defendants, now appellant in fact informed the court on 24th March 2003 of the application for the said assignment Order and also of the making of the assignment Order. On the 23rd July 2003 and again 3rd November 2003 the defendants and their counsel were absent despite service of hearing notice for those dates. The Court then proceeded to take evidence of the remaining witnesses for the plaintiff. After taking the plaintiffs address on 29th January and 3rd March 2004 the Court delivered Judgment on the 11th March 2004.
The Supreme Court in M.A. Williams v. Hope Rising voluntary funds society (1982) 1 – 2 S.C. 145 listed matters for consideration in application for setting aside a Judgment obtained in the absence of the defendant. The appellant cannot claim any right on the doctrine of Audi alterom Partem.
With due deference to the arguments of both Counsel to the appellant and Respondents on this issue, it touches directly on the default Judgment of Nweze J, delivered on the 11th March 2004 which is not on appeal before us. I am of the view that all arguments proffered on this issue by both counsel go to no issue. The ground upon which Issue 2 spar from having no connection with the real question, the subject of this appeal, must be discountenanced. See: MBN Plc v. Nwobodo (2005) 14 NWLR (pt.945) 379 at 387. It is hereby discountenanced.
On issue NO.3, the learned counsel to the appellant submitted that it is a long settled principle of law and quite elementary as well that unless a court pronounces a final and valid judgment on the merit after hearing both parties or by consent of both parties it retains the discretionary powers to set it aside once circumstances of the case meet with the conditions precedent of the granting of that relief. Appellants counsel cited and relied upon the following cases.
Banque Genevoisede Commerce et de credit Vs. CIA Mar. disola Spetsai (1962) 1 All NLR (pt.3) 496 at 497 & 499.
Williams v. Hope Rising Voluntary Society (1982) 1 All NLR (pt. 1) 1 at pages 5 lines 28 – 44 & 6 lines 1- 9.
Learned Counsel to the appellant also submitted that a final and valid Judgment in law is one which decides the right of the parties. In other words it is a decision on the merit of the case where the another has been assiduously canvassed and the rendition of a judgment is based on what is canvassed and agitated before the court by the legal combatants Appellants counsel cited the case of Brothers Merchants Co. Ltd. Vs. Merchant Bank of Africa Securities Ltd (2005) 124 LRCN 392 at 398 paragraphs EE – JJ to buttress this point.
He also submitted that no decision or judgment can be regarded as valid unless the trial Judge or court has completely heard both sides in the conflict. He cited the cases of:-
Deduwa v. Okorodudu (1976) 9/10 Supreme Court 329 Otakpo v. Summonu (1987) 5 SCNJ, 57.
On Issue No.3, the respondent counsel in his response maintained that since the appellant had every opportunity to attend the court to conclude hearing but deliberately declined to take the part, the question of alleged infraction of their right to fair hearing did not arise for consideration. He cited and relied on the case of Mohammed Vs. Kpela (2001) FWLR (pt.69)1404. The respondents finally urge the Court, to dismiss this appeal for lack of merit.
Again with due deference to both the appellant and respondents counsel, there is no appeal before us on the judgment of Nweze J, upon which the arguments of Issue NO.3 hinges on. I have no difficulty again in discountenancing the arguments proffered by both Counsels on this issue.
See: MBN Plc Vs. Nwobodo (Supra).
The bone of contention in this appeal is, whether the minute of the Judge constituted a decision on the motion and whether appealable. But before dealing with the question above, it is necessary to first define the word ‘Decision’. The word bears in the way it is used, the meaning given to it in the constitution namely that, “any determination of that court and includes judgment decree, Order conviction, sentence or recommendation”. It includes an Order of acquittal made by a Court in Criminal proceedings. See: Nafiu Rabiu Vs. the State (1981) 12 NCLR 293 and Section 318(1) part II second schedule to the 1999 Constitution of the Federal Republic of Nigeria. “Determination” in turn means, bringing or coming to an end or the mental action of coming to a decision, or the resolving of a question.
See: The Automatic Telephone Electric Co. Ltd Vs. The Federal Military Government of Nigeria (1968) 1 All N.L.R. 429 at 432. The word “determine” had also been defined as to make an end of the matter. See: Oaten Vs. Auty (1919) 2K.B. 278 at 284.
It is instructive to note that a decision within its definition under the said Constitution envisages any determination on an issue joined by or litigated by the parties before the court. See: Dike Vs. Adubah (2000) 2 SCNJ 41 at 48. But this, of course does not include Exparte interim decision, that may be made by the High Court, or Under the Fundamental Human rights Enforcement procedure Rules, that may be appealable by virtue of certain sections of the Constitution. However, a decision made by a Chief Judge, or judge in the discharge of a mere administrative duty under the law is not covered by the definition and therefore not subject to appeal.
See: Dike v. Adubah (Supra) at page 49. It is not therefore, every indication of the Courts intention or state of mind or repetitive observation or remark by court that qualifies as a decision or determination of the court. See: Dike Vs. Adubah (Supra) at page 244 per Alexandar C.J.N.
Applying the above, I am of the view that the minute in dispute, does not amount to a decision, within the con, provided by the above authorities. The decision allegedly to have been made in the minute, by Justice Chidobem, in my view was in the discharge of her administrative duty under the High Court law, being the Administrative Judge in Charge of Nsukka Judicial Division. Consequently that decision is not subject to appeal and I so hold.
From the sum total of what I said, this appeal lacks merit, and is hereby dismissed. Cost is assessed at N20,000.00 in favour of the respondents.
Other Citations: (2008)LCN/2806(CA)
