H.M.G. Ezenwaji V. University of Nigeria (Unn) & Ors (2005)

LawGlobal-Hub Lead Judgment Report

ADEKEYE, J.C.A.

This is an appeal against the ruling of the Federal High Court, Enugu, delivered on the 20/11/2000, in suit No. FHC/EN/CP/201/2000. The court by that decision discharged the interim order of injunction it earlier granted on 23/1012000 and also struck out the substantive action, an application/originating motion for judicial review filed on 24/10/2000. The applicant Dr. Ezenwaji for himself and on behalf of the Academic Staff Union of the University of Nigeria, Nsukka Branch (ASUU-UNN) being aggrieved by this order filed an appeal in this Court.

It is however imperative to state the brief facts leading to the decision of the Federal High Court made in respect of suit. No. FHC/EN/CP/201/2000 now subject of this appeal. The violent students’ demonstration in the Nsukka Campus of the University of Nigeria on the 12/7/2000, led to the closure of the University. The Governing Council promptly set up an ad hoc committee to look into the crisis. It gave the committee four terms of reference which in summary cover –

1. Ascertainment of the immediate and remote causes of the demonstration.
2. Assessment of damage done to University and personal property.
3. Identification of groups of persons involved in the demonstration.
4. Recommendation of appropriate measures that will forestall a reoccurrence of such violent protests.

The applicant went to the Federal High Court, Enugu where he sought and obtained leave to apply for judicial review against the University Authorities represented by five respondents namely –

1. University of Nigeria (UNN)
2. Professor F.N.C. Osuji (for himself and on behalf of the Council of UNN)
3. Dr. S. Abdulrahman (for himself and on behalf of ad-hoc committee on Violent Students Demonstration of 12th July 2000.
4. Professor G. F Mbanefoh Vice Chancellor UNN.
5. Mrs. G. I. Adichie (Ag. Registrar UNN)

In the suit No. FHC/EN/CP/149/2000, the court granted the leave sought and other prayers particularly the order to restrain the University authorities from further action on the demonstration of the 12/7/2000.

The respondent also filed an application on 3/8/2000 asking for either a variation or discharge of the order made by court on the 25/7/2000. The applicant however found that the University authorities were flouting the order for restrain made by court. The respondent in their memorandum to Senate dated 4/9/2000 raised a Joint Council/ Senate Committee of Investigation into the alleged roles played by some staff of the University during the violent students’ demonstration of 12/7/2000. This arose from the recommendation of the ad hoc committee whose activities were equally restrained for the purpose of the pending judicial review in suit No. FHC/EN/CP/149/2000. In reaction, the applicant/appellant instituted committal and disciplinary proceedings on 11/9/2000 against Prof. F.N.C. Osuji and others. As the joint committee also continued to discharge their duties in the face of the court order, the applicant/appellant went to court on 19/10/2000 to seek leave by an ex-parte application for restraint on the joint council/senate committee which then replaced the ad hoc committee as a party in the suit. The court granted the order for restraint on 23/10/2000. On 24/10/2000 the appellant filed a substantive motion on notice for judicial review in suit No. FHC/EN/CP/201/2000.

The respondents filed a counter affidavit and a motion on notice on 2/11/2000. The main grouse of the respondent being that:

“The ex-parte motion and the order is incompetent and an abuse of the process of this court and this court has no jurisdiction to entertain the suit.”

In his ruling, the learned trial Judge discharged the interim order made ex-parte on 23/10/2000 as being no more than a surplusage and unnecessary, while that of 25/7/2000 is still operative. The action FHC/EN/CP/201/2000 was subsequently struck out.

Both parties complied with the processes of appeal as stipulated in the Court of Appeal Rules 2002. Briefs were exchanged. At the hearing of the appeal, the applicant/appellant adopted and relied on the appellant’s brief filed on 7/12/02, and the reply brief filed on 18/3/2003. The applicant/appellant distilled four issues for determination from his five grounds of appeal as follows:

“(a) Whether failure to hear the applicant constitutes a breach of fair hearing and/or deprived the honourable court of its jurisdiction to make decision.

(b) In view of the facts and especially the law against contemptuous litigants had the learned trial Judge not occasioned a grave miscarriage of justice by his failure to appreciate the factual and legal soundness of the applicants distinct later proceedings.

(c) In view of all the circumstances of this case was the honourable trial court right to discharge the interim order of 23/10/2000 as surplusage and for being unnecessary.

(d) Having regard to the quantity and quality of evidence advanced on either side, was it proper for the honourable court to decide as it did in favour of the respondents?”

The respondents formulated three as follows:

“1. Whether the appellant was right in complaining about denial of fair hearing when he instituted an action similar to his earlier one against the same respondents on the same subject-matter while the court was still dealing with issues for jurisdiction and locus standi raised by the respondents.

2. Whether the appellant can complain of denial of fair hearing when he fully addressed the court ex-pm1e and got interim injunction against the respondents which interim injunction or order was preserved by the learned trial Judge in favour of the appellant against the respondents until the final determination of the suit. No. FHC/EN/CP/149/2000.
3. Whether the appellant can complain against a ruling which was given substantially in his favour and in which he was given an advice beneficial to the respondents.”

I do not have to use any magnifying devise to see and conclude that the foregoing issues formulated by the respondents do not arise from the appellant’s five grounds of appeal. It is trite that a respondent to an appeal must confine himself within the issue arising from the grounds of appeal filed by the appellant. The issues formulated by the respondents are more suitable to be raised by way of preliminary objection. The respondents may, if they so desire raise the issues by seeking leave to cross-appeal. Any issue raised in an appeal, which does not flow from the grounds of appeal must definitely be struck out, it is also my observation that the argument of the respondents failed to respond to all the issues argued in the appellants’ brief. The three issues raised in the respondents’ brief are incompetent and are hereby struck out as an appellate court can only hear and decide on issues raised on grounds of appeal filed before it.

Giwa-Amu v. Guardian Newspapers Ltd. (1999) 8 NWLR (Pt.616) 568; Hart v. Ezekiel-Hart (1987) 4 NWLR (Pt.63) 105; C.R.S.N Corporation v. Oni (1995) 1 NWLR (Pt.371) 270; Ogida v. Oliha (1986) 1 NWLR (Pt.19) 786.

I shall proceed to consider the arguments raised by the applicants/appellants in support of the four issues for determination.

The first issue is whether the failure to hear the applicant constitute a breach of fair hearing and/or deprived the honourable court of its jurisdiction to make the decision. The appellant argued that there was a breach of fair hearing and the court thereby lost its jurisdiction to come to any decision consequent upon fundamentally defective proceedings. On 20/11/2002, the applicant and counsel went present, the third respondent and counsel were also present. After announcement of appearances, counsel for the respondent introduced the ground for his motion, and without calling on the applicant or his counsel to hear their own side of the application, the learned trial Judge proceeded to write and pronounce his ruling. It is trite law that in any suit or proceedings before the court, any refusal, failure or neglect to hear the two parties in adversary constitutes a breach of fair hearing. The consequence of any breach of fair hearing either under the common law or section 36(1) of the 1999 Constitution is to nullify the proceeding and render any decision arrived at void ab initio. The appellant cited the cases of Ogundoyin v. Adeyemi (2001) 13 NWLR (Pt.730) 403 SC.; (2001) 89 LRCN 2001 LRCN 2585; Ekiyor v. Bomor (1997) 9 NWLR (Pt.519) 1; (1997) 7 SCNJ 479; Unibiz v. C.B.C.L (2001) 7 NWLR (Pt.713) 534 at 541; Chairman NPC v. Chairman Ikere Local Govt. (2001) 90 LRCN 2803.

On the second issue, which is in view of all the facts and especially the law against contemptuous litigants had the learned trial Judge not occasioned a grave miscarriage of justice by his failure to appreciate the factual and legal soundness of the applicants distinct later proceedings. The appellant argued and submitted that every superior court of record has power to control its own proceedings and consequently protect it processes from abuse of the courts process is by nature a factual matter. What is or is not an abuse of courts process varies from one situation to another. The most common situation is when a suit is filed during the pendency of identical suits for the same reliefs between the same parties and on the same subject-matter or cause of action. In the present suit on appeal, the suits are different, the parties and reliefs are also different. In the suit 149, the main respondent is the ad hoc committee represented by Dr. S. Abdulrahman, while the main respondent in suit 201 is the Joint Council/Senate committee represented by Barrister K. M. Magaji as 3rd respondent. The cause of action in both suits are different while that of 149 is predicated on the constitution and terms of reference of the ad hoc committee, the subject-matter for 201 is the summons by the Joint Council/Senate Committee against the applicant on 17/10/2000. The court even agreed that the appellants’ case may not amount to an abuse, and that they may have a good case if well founded. The premise on which the learned trial Judge based its decision is that the only remedy for disobedience of a court order is the committal proceedings, which is not the case. The fastest legal remedy to disobedience of court order is the invocation of the courts disciplinary jurisdiction not to hear the contemnor. One could ask for declaration or other appropriate orders to nullify the product of the disobedience. The appellant cited the cases of 7-Up Bottling Co. v. Abiola (2001) 13 NWLR (Pt.730) 469; (2001) 88 LRCN 2214; Mobil Oil v. Assail (1995) 8 NWLR (Pt.412) 129; (1995) 9 SCNJ 97; Shugaba v. Union Bank (1999) 7 SCNJ 125; (1999) 11 NWLR (Pt.627) 459; Daramola v. A.-G., Ondo State (2000) 7 NWLR (Pt.665) 440.

Issue No. three asks whether the honourable court was light to discharge the intelim order of 23/10/2000 for being a surplusage and unnecessary. The argument of the applicant is that the interim order of 23/10/2000 was neither unnecessary nor a surplusage and its discharge was wrongly done in so far as the applicant was not given an opportunity to explain why it should not be discharged. If the applicant had been given an opportunity to be heard, the court would have been reminded of the basis for the wider and more far reaching orders made on 23/10/2000 over of 25/7/2000 which was being undermined and disobeyed. If the court had glanced at its records of 23/10/2000 when it made that order, the court would surely have seen that it was deliberately and carefully pronounced with full knowledge of the pendency and flouting of the order of 25/7/2000/. The discharge of that order was not based on correct factual and legal ground hence it must be reversed.

The appellant supported the foregoing submission with the case of Okafor v. Attorney-General Anambra State (1999) 7 SCNJ 192; (1991) 6 NWLR (Pt.200) 659.

The 4th issue is whether on the weight of evidence adduced, it was right to decide in favour of the respondents. The appellant argued and submitted that on the quality and quantity of available evidence advanced by both sides, the greater weight on the applicants side of the imaginary scale should have convinced his Lordship and it was therefore perverse and wrong to rule in favour of the respondents whose actions were contemptuous of the court order as against the appellant. Every court is enjoined to evaluate and weigh evidence adduced by the adverse parties before determining for whom it will decide. In this case quite apart from the greater quantity of evidence advanced by the applicants in terms of specific affidavit depositions and supporting documentary exhibits, in terms of quality, the evidence adduced by the appellant is detailed and accurate, while there is entirely nothing on the side of the respondents. The appellants is urging this court to hold that a resolution of any of the issues in favour of the appellant should result in the reversal of the decision of 20/11/2000. This court is urged to set aside the proceedings and decision of 20/11/2000 and to direct a proper hearing of all the motions pending at that date in suit 201.

I shall consider the four issues in seriatim.

On issue No.1, the appellant’s complaint was a breach of fair hearing by the lower court in the conduct of its proceedings on 20/11/2000. If lack of fair hearing is established by the appellant the resultant effect is to vitiate the proceedings affected, while any decision reached by court in the circumstance shall be rendered null and void. Saleh v. Monguno (2003) 1 NWLR (Pt.801) 221; Okafor v. A.-G., Anambra State (1991) 6 NWLR (Pt.200) 659 at 678; Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt.622) 290.

It has been settled in a plethora of cases that hearing cannot be said to be fair if any of the parties is refused a hearing or denied the opportunity to be heard, present his witness or call evidence. Military Governor of Imo State v. Nwauwa (1997) 2 NWLR (Pt.490) 675.

I have to look into the circumstances prevailing when the application was heard so as to determine whether he was actually deprived of his constitutional right, which he has the right to guard jealously. Here in Nigeria, fair hearing is not only a common law right, it is a constitutional right enshrined in section 36(1) of the 1999 Constitution. The proceedings of 20/11/2000 are at page 173 of the record of Appeal. It reads as follows:

“Applicant is present in court.

3rd respondent in court.

R.A.C.E. Achara Esq. for applicant.

Dr. Ejike Umeh SAN: We have a motion on notice dated 30/10/2000.

Dr. Ejike Umeh: I have a preliminary objection to this present suit. It is founded on incompetency and lack of jurisdiction.”

The court proceeded thereafter to take a decision on the issue of hearing the suit FHC/EN/CP/201/2000 a motion on notice dated 30/10/2000 for judicial review. This action of the learned Judge on the face of the record has all the attributes of lack of fair hearing. On the other hand, one has to understand the scenario so as to appreciate what led to the impromptu ruling of the learned Judge on 20/11/2000. This was perfectly and clearly summarized by the learned Judge in the ruling as follows:

“Another suit is pending in this court. This suit is No.FHC/EN/CP/149/2000. It is between the same parties and precisely the same subject-matter. In that suit objection was raised on jurisdiction which was being argued and which is to be continued on 1/12/2000. However, an interim order is still pending and that order is to the effect that all actions and matters relating to and connected with the complainant be stayed until a stated time.

This action was filed while the other suit is still pending. I have gone through the papers filed in this case and it relates substantially to the same subject matter as the other suit. The crux of the complaint appears to be that the defendants were or are flouting this court’s order made on 25/7/2000. As a matter of fact, if the allegations are true and well-founded, the acts complained of would have flouted the order of 25/7/2000. Even if it were so, what is to be done is not bringing a new action or another action. Our courts frown at multiplicity of suits.

In an aggravated form, it amounts to an abuse of the courts processes. This instance may not be an abuse of the courts processes, because from the papers filed they may have a good case if well founded. They have however taken the wrong procedure.”

Against this background, the court proceeded to make a decision not to listen to any argument as this would amount to a waste of the court’s precious litigation time. He emphasized having perused all the papers before the court. The application and the affidavit evidence in support had clearly elaborated on the case of the parties to the satisfaction of the court. This proceeding is an instance, which depends on the discretion of the court, particularly hearing of applications. Where hearing of an application will result in an abuse of judicial process, the court obviously and surely has a discretion to exercise. It is the duty of the court to jealously guard against the erosion of its own judicial process. The court at the last paragraph of the decision said that:

“The learned Counsel is still free to bring the action through proper procedure” (Vide pg. 175 of the record.)

The complaints in suits FHC/EN/CP/149/2000 and FHC/EN/CP/201/2000 are against the authorities of the University of Nigeria Nsukka Campus, in respect of the steps taken by them to get to know the root causes of the violent demonstration of the campus on the 12/7/2000. There were repetitions of applications for restraint, repetition of application for judicial review, application for committal against the erring authorities were not timeously presented to court for hearing. The appellant made heavy weather of the lower court giving right of audience to the respondents while in contempt. Although the general rule is that a contemnor will not or cannot be heard there are some recognized exceptions to the said rule which are as follows:

(a) Where a party is seeking for leave to appeal against the order for which he is in contempt.

(b) Where the contemnor tends to show that because of the procedural irregularities in making the order, it ought not be sustained.

(c) Where the order is being challenged on the ground of lack of jurisdiction.

(d) Where the contemnor seeks to be heard in defence of the order.

In this instance, the respondents approached the court on the ground of incompetency and lack of jurisdiction (Vide pg.174 of the record) and the court rightly and promptly took a decision on the matter.

Ezegbu v. F.A.T.B. Ltd. (1992) 7 NWLR (Pt.220) 699; Mobil Oil Nig. Ltd. v. Assail (1995) 8 NWLR (Pt.412) 129.

There cannot be a breach of fair hearing where a litigant has adopted the wrong procedure in the pursuit of justice. The learned trial Judge exercised a discretionary power as a matter of his own court, which he exercised judiciously and without occasioning a miscarriage of justice. All the remedies sought in suit No. FHC/EN/CP/201/2000 which he struck are still pending in suit No.FHC/EN/CP/149/2000. Issue one is therefore resolved in favour of the respondent, issue No two is whether in view of the facts especially the law against contemptuous litigants, had the learned trial Judge not occasioned a grave miscarriage of justice by his failure to appreciate the factual and legal soundness of the applicants distinct and later proceedings. The simple reply to this issue is that dubbing the respondents as contemptuous litigants is only in the imagination of the appellant. The issue of the contempt has to be tested and confirmed before the court whose order they have defied. The appellant filed an application for contempt according to the records. But there is no indication that the application was heard.

An application for judicial review is not a confirmation or a pointer to the fact that a party is in contempt. Issue No.2 was not strongly canvassed; it is hereby resolved in favour of the respondent.

According to issue No.3, the grouse of the appellant is that in view of all the circumstances of this case, was the honourable trial court right to discharge the interim order of 23/10/2000 as a surplusage and for being unnecessary. This order is at page 169 of the record of Appeal. It is a motion ex-parte whereupon the applicant/appellant filed another application for judicial review and is therefore seeking leave to argue same in addition to other reliefs. The court ordered inter alia that:

“This court on 25/7/2000 granted leave to this same applicant in suit No. FHC/EN/CP/149/2000 to apply for judicial decision as it affects him. The court by that leave ordered a stay of all action and matters pertaining to or connected with the subject-matter of this case. The case is still pending and that order is yet to be discharged. ”

Whenever a matter is subjudice, it should be left in the hands of the court and nothing should be done by anybody to prejudice the judicial proceedings.

“Having this in mind, I therefore restrain the respondents forthwith from doing any act in the form or under any guise in respect of the subject-matter until the determination of the suit and that of PHC/EN/CP/1449/2000.

Secondly the Council/Senate Committee of Investigation set up by the 1st respondent is restrained from taking any action or recommending any action against the applicant until the determination of the pending suits before this court between the applicants and the respondent.”

The decision in suit No. FHC/EN/CP/201/2000 delivered on 20/11/2000 is that another suit FHC/EN/CP/149/2000 is pending in the court while suit FHC/EN/CP/201/2000 was filed. Both suits are between the same parties and on the same subject-matter. An interim order is still pending to the effect that all actions and matters be stayed connected with the complaint until a stated time. The complaint now is that the respondents are flouting the order made on 25/7/2000. The order of 25/7/2000 is in fact wide enough to cover the situation complained of by the plaintiff. The interim order made ex-parte on 23/10/2000 is no more than a surplusage and in fact unnecessary. The order was discharged but that of 25/7/2000 is still operative.

The interim order of 25/7/2000 is still operative until discharged. This order was not by any means discharged or terminated before the learned Judge embarked on hearing another ex-parte application in respect of the same subject-matter between virtually the same parties and ultimately granted another order of restrain while one was still subsisting and operative between the parties. It is still the greatest privilege and prerogative of one saddled with the administration of justice that once an abuse of the process of court is apparent he should not hesitate to nip it in the bud. An example of abuse of court process is for different actions based on the same facts between the same parties to be filed in different courts or even the same court simultaneously in respect of the same right and subject-matter. A court of law will always prevent the improper use of its machinery. Benaplastic Industries Ltd. v. Vasilyev (1999) 10 NWLR (Pt.624) 620; Harriman v. Harriman (1989) 5 NWLR (Pt.119) 6; CBN v. Ahmed (2001) 11 NWLR (Pt.724) 369.

I resolve this issue in favour of the respondent.

Issue No.4 and the final issue considers that having regard to the quality and quantity of evidence advanced on either side was it proper for the honourable court to decide as it did in favour of the respondents.

Having used the words quality and quantity of evidence, it is apparent that the appellant has at the back of his mind the rule in Mogaji v. Odofin (1978) 4 SC 91, which is the pivot for the evaluation of evidence and ascription of probative value in the trial court.

I have to remark that it is the duty of every Judge while writing a judgment or a ruling, to do substantial justice in each case and to properly evaluate or consider the case before him and weigh same on imaginary scale having regard to the evidence adduced and the legal principles applicable to the case. In the process, the learned trial Judge will put the evidence adduced by the plaintiff on one side of the scale, and that of the defendant on the other side of the scale and weigh them together. It will then see which is heavier not by the number of witnesses called by each party, but by the quality of or the probative value of the testimony of those witnesses. In short, the trial Judge considered the quality of the evidence adduced before coming to his final conclusions.

Isyaku v. Master (2003) 5 NWLR (Pt.814) 443; Bakare v. Apena (1986) 4 NWLR (Pt.33) 1, Whyte v. Jack (1996) 2 NWLR (Pt.431) 407; Mogaji v. Odofin (1978) 4 SC 91.

Going by the evidence on printed record now before me, I hold that the learned trial Judge had rightly decided in favour of the respondents in the circumstance of this case. I resolve Issue No.4, in favour of the respondents.

I went all the way in the consideration of this appeal in the event of any appeal to the Supreme Court. There is actually no live, issue in the appeal itself. Most of the personae dramatis are no longer in the University, while peace and quiet have returned to the campus with everybody going about their normal business. This appeal in effect has become a mere academic exercise. An appellate court does not indulge in an academic exercise by entertaining an issue, which does not affect the merit of the appeal. Courts of Law, like nature do not act in vain but for a purpose, and the purpose must exist, identifiable and identified. Buhari v. Obasanjo (2003) 17 NWLR (Pt.850) 587; Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt.622) 290.

In the final analysis, this Appeal lacks merit is hereby dismissed. Costs of the Appeal is assessed at N5,000 in favour of the respondents.

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Other Citations: (2005)LCN/1839(CA)