Hyun Sung Hydraulic V. Sahyra Nig. Ltd. & Ors (2007)
LawGlobal-Hub Lead Judgment Report
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A
This is an appeal against the judgment of the Kano State High Court NO.3 in Suit No. K/106/2003 delivered on 15/1/04.
The appellant, as plaintiff at the trial court took out a writ of summons on 7/2/2003 against the 1st and 2nd defendants who are the 1st and 2nd respondents in this appeal, claiming the following reliefs:
- “The sum of N2, 533, 343.00 being the amount outstanding for hydraulic machines and accessories sold to the Defendant by the Plaintiff from 04/10/2000 to 08/01/2001; the Plaintiff has made several and repeated demands for the said balance but the Defendant has so far failed, neglected or refused to pay same.
- Costs and interest at the rate of 10% p.a. on the said balance from the day judgment is delivered until the judgment debt is fully paid.”
The suit was entered on the Undefended List. Along with the writ of summons, the plaintiff filed an ex-parte application and a motion on notice for an order against the defendants to furnish security in the sum of N2, 500, 000.00. The plaintiff also sought an order that the machines, which had already been delivered to the defendants, be attached in the interim and kept in the custody of the court pending the determination of the suit or further orders from the court. The court refused the ex-parte application but granted the motion on notice. The order was duly executed. After the execution, the 3rd respondent herein filed an application before the court seeking the release of the attached machines to him on the ground that he had purchased them from the 2nd respondent. The appellant and the 1st and 2nd respondents filed counter affidavits to the motion.
Before the motion could be heard, the presiding Judge, Shehu Atiku, J declined further jurisdiction. The suit was therefore transferred to High Court No. 3 presided over by Umaru Alkali, J. On 24/7/03 the 3rd respondent filed a fresh motion seeking to be joined in the suit as a co-defendant and seeking the release of the machines to him. The appellant filed a notice of preliminary objection dated 30/7/2003 challenging the court’s jurisdiction to entertain the 3rd respondent’s motion. When the 3rd respondent’s application came up for hearing on 9/10/03 the appellant and the 1st and 2nd respondents were absent and unrepresented by counsel. The appellant’s preliminary objection was accordingly struck out. The 3rd respondent therefore argued his application. The prayer seeking to join him as a co-defendant was granted. The court however adjourned further hearing in respect of the prayer seeking the release of the machines to 20/10/03, to afford the appellant and the 1st and 2nd respondents an opportunity to react. On 20/10/03 the appellant filed another preliminary objection challenging the court’s jurisdiction to hear or further entertain the 3rd respondent’s motion.
On 15/1/04 when the suit came up for hearing, the appellant’s counsel drew the court’s attention to the fact that the 1st and 2nd respondents had not filed a notice of intention to defend in accordance with the rules of court and applied for judgment against them. The learned trial Judge accordingly entered judgment in favour of the appellant against the 1st and 2nd respondents. He also ordered the immediate release of the attached machines to the 3rd respondent even though the appellant’s preliminary objection to the further hearing of the 3rd respondent’s motion dated 24/7/03 had not been disposed of.
At page 39 of the record the learned trial Judge held as follows:
“I have listened to the parties in this case. I am satisfied that the transactions between the plaintiff and the 2nd [defendant] has been completed and since [the] 2 defendants did not file any notice of intention to defend plaintiff is entitled to judgment and consequently judgment is hereby granted in favour of the plaintiff as per the writ of summons/statement of claim of the plaintiff. With regard to the release of the machine the 3rd defendants counsel has since move (sic) the application and when the 1st and 2nd defendants were about to apply question of reconciliation arose they file (sic) a notice of preliminary objection and I have gone through the notice of objection and nothing therein concern (sic) the 3rd defendants. Plaintiff has (sic) no claim against the 3rd defendant. He has validly purchased the machine from the 2nd defendant. This is clear from the various affidavits filed by the 3rd defendant.
And not delivered (sic) by the other parties. Consequently I order that the machine be released to him immediately and plaintiff can then attach (sic) the 1st and 2nd defendants’ properties to recover their judgment debt.” The appellant was dissatisfied with the part of the decision ordering the release of the machines to the 3rd respondent. It has therefore appealed to this court by its notice of appeal dated 15/1/04 containing three grounds of appeal. The grounds of appeal are as follows:
- The decision is against the weight of affidavit evidence adduced in the proceedings.
- The learned trial Judge denied the plaintiff fair hearing, an opportunity to be heard before arbitrarily granting the 3rd defendant’s motion and ordering the release of the attached machines to the 3rd defendant.
PARTICULARS
i) The plaintiff filed and was prepared to argue their preliminary objection but was not allowed to do so before the motion was granted.
ii) The said objection challenged the Hon. Court’s jurisdiction to entertain the motion.
iii) The plaintiff and the 1st and 2nd defendants also had respective counter affidavits to the motion but were not allowed to be heard in reply to the 3rd defendant’s arguments before the motion was granted.
iv) The Hon. Trial Judge had become functus officio and had no jurisdiction to further entertain the 3rd defendant’s motion.
- The learned trial Judge erred in law when he refused to have duly resolved the issue of challenge to his jurisdiction before proceeding with and determining the 3rd defendant’s said motion.”
In compliance with the Rules of this Court the appellant and the 3rd respondent duly filed and exchanged their respective briefs of argument. The 1st and 2nd respondents did not file any brief nor were they represented by counsel throughout the hearing of this appeal, although duly served. In the appellant’s brief dated 9/7/04 two issues were formulated for the determination of this appeal:
- Whether the appellant was denied fair hearing by the learned trial Judge in the handling of the Respondent’s motion dated 24/7/03. (Ground 2 of the notice of appeal.)
- Whether the learned trial Judge was right in overriding the objection to his jurisdiction and proceeding to determine the respondent’s motion dated 24/7/03. (Ground 3 of the notice of appeal).
The 3rd respondent, in his amended brief of argument dated 5/5/06 but deemed filed on 15/1/07, also formulated two issues for the determination of this appeal:
- Whether having regard to the circumstances of this case, the appellant was denied a fair hearing with respect to the 3rd respondent’s motion dated 24/7/03.
- Whether the alleged challenge to the jurisdiction of the trial court was considered by the trial Court before disposing of the 3rd respondent’s motion of 24th July, 2003.”
The appellant also filed a reply brief dated 17/1/07 and filed on 18/1/07.
At the hearing of this appeal on 22/1/07, the appellant and the 1st and 2nd respondents were absent and unrepresented by counsel. The court was satisfied from the record that they had all been served with hearing notices. Mr. D.D. Onietan, learned counsel for the 3rd respondent adopted the 3rd respondent’s brief and urged us to dismiss the appeal. As the appellant had filed its brief of argument and a reply brief the appeal was deemed argued pursuant to Order 6 Rule 9 (5) of the Court of Appeal Rules 2002.
The two issues for determination formulated by both parties are virtually the same. I am of the view that the only issue for determination in this appeal is the appellant’s issue no. 1, which in fact covers issue no. 2. The appeal shall therefore be determined on the appellant’s issue no. 1.
In arguing the only issue for determination, learned counsel for the appellant, Nelson Uzuegbu Esq. argued in his brief that when the case came up for hearing on 15/1/04 and the appellant’s counsel applied for judgment to be entered against the 1st and 2nd respondents, the learned trial Judge ought to have called on the appellant first to argue its preliminary objection or to reply to the 3rd respondent’s counsel’s argument in respect of prayer 2 of the motion dated 24/7/03. He submitted that failure to afford the appellant an opportunity to be heard in respect of the motion amounts to a breach of its right to fair hearing. He relied on: Udo VS C.R.S.N.C. (2002) FWLR (104) 665; Orugbo Vs Una (2002) FWLR (127) 1024. He submitted that once the right to fair hearing has been breached the correctness or otherwise of the decision is immaterial and the decision ought to be set aside. He relied on: Ceekay Traders ltd. Vs General Motors Ltd. (1992) 2 NWLR (222) 132.
Learned counsel submitted that the court ought to have heard and determined the preliminary objection to the motion dated 24/7/03 before further entertaining the motion. He cited the case of: Intercity Bank Plc. Vs Ali (2002) FWLR (126) 828 at 849 A; Kalio Vs Kalio (1975) 2 S. C. 15 at 22; Abdulsalam V Salawu (2002) FWLR (117) 1103. He submitted that rather than hear the parties, the learned trial Judge considered the preliminary objection suo motu and held in the course of granting the second prayer of the motion that nothing in the objection concerned the 3rd respondent. He submitted that the learned trial Judge was not entitled to raise and resolve the issue suo motu without hearing the parties. He relied on: Allied Bank Vs Akubueze (1996) 6 NWLR (509) 374. He argued further that even if the court had taken the objection and overruled it, the substantive motion should have been heard on its merits. He relied on: Union Bank of Nig. Plc. V. C.F.A.O. (1997) 11 NWLR (527) 118 at 129 G-H. He submitted that by making the order releasing the machines to the 3rd respondent, the court had deprived the appellant of the means of realizing the judgment it obtained, thereby occasioning a miscarriage of justice.
In the 3rd respondent’s brief, Mr. D.D. Onietan of counsel addressed certain issues that were not in contention in the appellant’s brief. In the course of stating the facts that led to this appeal, learned counsel for the appellant referred to the fact that on 9/10/03, the day the 3rd respondent’s motion dated 24/7/03 came up for hearing, the appellant who had a pending preliminary objection to the hearing of the motion, was absent and unrepresented by counsel and consequently its preliminary objection was struck out. Learned counsel also stated that the written request of counsel to the 1st and 2nd defendants for an adjournment was refused. His contention that the appellant was not given a fair hearing was however not based on the fact of its absence in court on that day or on the refusal of the court to grant the 1st and 2nd defendant’s counsel’s written request for an adjournment. Learned counsel in fact conceded that in spite of their absence in court that day, the learned trial Judge only granted the 3rd respondent’s first prayer to join in the suit as a co-defendant and adjourned the second prayer, which he considered to be contentious, to another date to enable the appellant and the 1st and 2nd respondent’s react to it. Moreover, there is no appeal against the refusal of the request for an adjournment. The submissions of learned counsel for the 3rd respondent at pages 6-8 of his brief on this issue are therefore misconceived and are accordingly discountenanced.
On the appellant’s contention that the learned trial Judge ought to have called on it to argue its preliminary objection or to reply to 3rd respondent’s counsel’s argument in support of the motion dated 24/7/03, learned counsel for the 3rd respondent argued that it was for the appellant, who w as represented by counsel and who had applied for judgment against the 1st and 2nd defendants, to draw the court’s attention to the pending preliminary objection and outstanding arguments on the motion.
He argued that having failed to do so; the appellant could not be heard to complain of a denial of fair hearing. He cited the case of: Kano ile Printers Vs Gloede & Hoff Ltd. (2002) 2 NWLR (751) 420 at 450 C.D. He submitted further that the claim in the substantive suit had nothing to do with the 3rd respondent. He submitted that as there was no adverse claim to the machines by the appellant, the court was entitled to release them to the 3rd respondent. On the concept of fair hearing he referred to the case of: Ayalogu Vs Agu (1998) 1 NWLR (552) 129 at 135.
With regard to the appellant’s contention that the court did not hear its preliminary objection on the merits, learned counsel for the 3rd respondent argued that the preliminary objection had been struck out for want of diligent prosecution on 9/10/03 due to the absence of the appellant and its counsel. He submitted that with the striking out of the preliminary objection, the issue of jurisdiction had been resolved. He submitted that the cases cited by the appellant, namely Intercity Bank Plc. V. Ali (supra); Abdulsalam Vs Salawu (supra) and Allied Bank Vs Akabueze (supra), are not relevant to the issues in contention in this appeal.
Learned counsel for the 3rd respondent observed that the appellant did not formulate any issue from ground one of the notice of appeal. He urged us to strike it out. He relied on: Hajaig & Anor. V. Hajaig & Ors. (2004) All FWLR (207) 697 at 709-710 H-A; Adigun Vs Ayinde (1993)8 NWLR (313) 516.
In his reply brief, learned counsel for the appellant argued that contrary to the 3rd respondent’s counsel’s contention that there was a valid sale of the machines, the subject matter of prayer two of the motion dated 24/7/03, the appellant in paragraph 3 (g) of its counter affidavit at page 69 of the record had averred that the 3rd respondent knew that the machines were sold to the 1st and 2nd defendants conditionally and had not been fully paid for. He also referred to paragraph 5 (j) and (k) of the 1st and 2nd respondents’ counter affidavit at pages 66 and 67 of the record where it was averred that the 2nd respondent signed an undertaking under duress at the Police Station purporting to sell the machines to the 3rd respondent. He submitted that these were issues the appellant and 1st and 2nd respondent would have raised had they been heard before the application was granted.
Learned counsel for the appellant noted that contrary to the submissions of learned counsel for the 3rd respondent, the arguments in the appellant’s brief regarding fair hearing in relation to its preliminary objection were based on the preliminary objection dated 20/10/03, which was filed after the objection dated 30/7/03 was struck out on 9/10/03 for want of prosecution. He submitted that it was still pending when the suit came up for hearing on 15/1/04. He noted that learned counsel’s arguments related to the earlier objection. Learned counsel also addressed the 3rd respondent’s counsel’s submissions regarding the court’s refusal to grant an adjournment on 9/10/03 and whether or not reasons were given for their absence. I have held earlier that there is no appeal against the refusal of the court to grant an adjournment on 9/10/03. The arguments canvassed in this regard therefore go to no issue and are discountenanced.
It is pertinent to state here that the purpose of a reply brief is to enable the appellant respond to new Issues or points that might have arisen in the respondent’s brief. It is not to enable the appellant re-argue the appeal. See: Ojukwu V Obasanjo (2004) 7 S.C. (Pt. 1) 117 at 154. The submissions in the reply brief that repeat the arguments contained in the appellant’s brief are therefore discountenanced.
It is settled law that a ground of appeal in respect of which no issue is formulated is deemed to have been abandoned and should be struck out. Learned counsel for the 3rd respondent has rightly observed that the appellant did not formulate any issue in respect of ground one in the notice of appeal. The said ground is therefore deemed abandoned and accordingly struck out. See: Ibrahim Vs Mohammed (2003) 2 S.C. 127 at 140; Eholor V. Osayande (1992) 6 NWLR (249) 524 at 534; Hajaig & Anor. V. Hajaig & Ors. (2004) ALL FWLR (207) 697 at 709-710 H-A.
The right to fair hearing, which is one of the twin pillars of natural justice expressed by the maxim: audi alteram partem, is a fundamental right guaranteed by Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria. Where it is found that the right to fair hearing has been breached, such breach nullifies the entire proceedings and any action taken in respect thereof. See: Mohammed Vs Kano Native Authority (1968)1 ALL NLR 42; Unongo Vs Aku (1983) 2 SCNLR 332 at 362; Adigun Vs A.G. Oyo State (1987) 1 NWLR (53) 678 at 709 F; Ogboh Vs Federal Republic of Nigeria (2002) 4 S.C. (pt. 11) 106 at 115-116.
The Supreme Court held in the case of Kotoye Vs C.B.N. (1989) 1 NWLR (98) 419 at 448 C that the rule of fair hearing is not a technical doctrine but one of substance. The Court held that the question is not whether injustice has been done because of lack of fair hearing. It is whether a party entitled to be heard before deciding had in fact been given the opportunity of a hearing.
Before applying the principles stated above to the case at hand it is necessary to deal with the argument of learned counsel for the 3rd respondent regarding whether or not the appellant had a pending notice of preliminary objection before the court on 15/1/04 or whether it had been struck out. With due respect to learned counsel, upon a careful examination of the record, he appears to have overlooked the fact that on 20/10/03 the appellant filed a fresh notice of preliminary objection to the further hearing of the 3rd respondent’s motion dated 24/7/03. The preliminary objection is at page 43 of the record. It first came up on 20/10/03 and was brought to the court’s attention. However learned counsel for the various respondents informed the court that they had just been served with the process in court that day and sought an adjournment. The preliminary objection was adjourned to 10/11/03. The suit was subsequently adjourned on several occasions until 15/1/04 when judgment was finally entered in the appellant’s favour against the 1st and 2nd respondents and the second prayer of the 3rd respondent’s motion was granted. These facts are borne out by the record at pages 36-39. It is this second preliminary objection, which was pending on 15/1/04 that is the source of the appellant’s complaint.
On 15/1/04 two processes were pending before the court, namely the second prayer of the 3rd respondent’s motion dated 24/7/03 and the appellant’s preliminary objection dated 20/10/03 challenging the further hearing of the said motion. It is not in dispute that when the matter came up for hearing on 15/1/04 the appellant’s counsel applied for judgment to be entered against the 1st and 2nd respondents on the ground that they had failed to file a notice of intention to defend, which the learned trial granted. Learned counsel for the 3rd respondent has argued that the appellant had a duty to bring to the court’s attention the fact that other processes were still pending. I agree with him. The court itself also has a duty to ensure that all processes pending before it are disposed of before the final determination of the substantive suit.
However the circumstances of this case are rather peculiar. This is because in the course of entering judgment for the appellant against the 1st and 2nd respondents, the learned trial Judge went further to consider suo motu the appellant’s preliminary objection to the 3rd respondent’s motion dated 24/7/03 as well as the remaining prayer on the said motion and granted same. At page 39 of the record he stated thus:
“With regard to the release of the machine the 3rd defendants counsel has since move (sic) the application and when the 1st and 2nd defendants were about to apply question of reconciliation arose they file (sic) a notice of preliminary objection and I have gone through the notice of objection and nothing therein concern (sic) the 3rd defendants. Plaintiff has (sic) no claim against the 3rd defendant. He has validly purchased the machine from the 2nd defendant. This is clear from the various affidavits filed by the 3rd defendant. And not delivered (sic) by the other parties. Consequently I order that the machine be released to him immediately and plaintiff can then attach (sic) the 1st and 2nd defendants’ properties to recover their judgment debt.” (Emphasis supplied)
It is quite clear from the portion of the judgment reproduced above that although learned counsel for the appellant did not remind the court about the pending processes, the learned trial Judge was well aware that they were still pending. It is also clear that His Lordship considered the preliminary objection along with the second prayer of the motion dated 24/7/03 suo motu. He did not invite any of the parties to address him even though learned counsel to all the parties were in court. This is even more surprising since it was he who adjourned the second prayer of the motion when it came up on 9/10/03 so that all the parties could be heard. There is no doubt that the failure of the learned trial Judge to hear the parties in respect of the preliminary objection and the motion dated 24/7/03 before reaching a decision amounted to a breach of the parties’ fundamental right to fair hearing. A similar situation arose in the case of: N.A.A. Vs Orijiakor (1998) 6 NWLR (533) 265 at 282. Tobi, JCA (as he then was) stated thus:
“The granting of the motion for joinder at the material time when the preliminary objection was not disposed of is a breach of Section 33 of the Constitution. A Judge has a duty to complete hearing of a motion before him by giving a ruling one way or the other. A court has no duty to terminate a motion in limine and jump to another motion without giving a ruling on the first motion. This is what the learned trial Judge did. By her action the appellant was denied a hearing in respect of the preliminary objection, which is in breach of Section 33 of the Constitution and the natural justice principle of audi alteram partem.”
See also: Otapo V Sunmonu (1987) 2 NWLR (58) 587; Adene V Dantubu (1988) 4 NWLR (88) 309.
The question that must now be determined is the effect of such breach on the proceedings. In the case of: Adeyemi V Y.R.S. Ike-Oluwa & Sons Ltd. (1993) 8 NWLR (309) 27 at 49, the Supreme Court held that the failure of the Court of Appeal to hear the appellant before it summarily dismissed his application even though he was present in court and announced his appearance was a violation of the mandatory provisions of Section 33 (1) of the 1979 Constitution (which is in pari materia with Section 36 (1) of the 1999 Constitution) and rendered the proceedings a nullity. See also: Alabi V Amoo (2003) 7 S.C. 154 at 160; Adigun Vs A.G. Oyo State (supra); Obodo Vs Olomu (1987) 3 NWLR (59) 111 and Okafor Vs A.G. Anambra State & Ors. (1991) 6 NWLR (200) 659. The position of the law therefore is that failure to observe the principle of fair hearing in the conduct of a case or any proceeding in respect thereof renders the proceedings a nullity.
In the instant case, the appellant has only challenged the procedure adopted by the court in its consideration of the preliminary objection and the second prayer of the 3rd respondent’s motion. In its notice of appeal the appellant seeks the following reliefs:
- “An order setting aside the learned trial Judge’s order of release of the Extruder and Cutting and Sealing Machines to the 3rd Defendant/Respondent.
- An order dismissing or setting down for rehearing the “3rd defendant” (sic) motion dated 24/7/03.”
What is the proper order to make in the circumstances? It is important to note that the order for the release of the machines to the 3rd respondent forms part of the judgment given in favour of the appellant. Can the judgment be separated from the order? It is my respectful view that it cannot. The breach of the principle of fair hearing in respect of the preliminary objection and the motion has tainted the entire proceedings. I am guided by the decision of the Supreme Court in the case of: Orugbo V. Una (2002) 9-10 S.C. 61 at 69 lines 1-21 where it was stated as follows:
“The fair hearing principle entrenched in the Constitution is so fundamental in the judicial process or the administration of justice that breach of it will vitiate or nullify the whole proceedings, and a party cannot be heard to say that the proceedings were properly conducted and should be saved because of such proper conduction. Once an appellate court comes to the conclusion that there is a breach of the principle of fair hearing, the proceedings cannot be salvaged as they are null and void ab initio. After all, fair hearing lies in the procedure followed in the determination of the case, not in the correctness of the decision. Accordingly, where a court arrives at a correct decision in breach of the principle of fair hearing, an appellate court will throw out the correct decision in favour of the breach of fair hearing. See generally Ceekay Traders Ltd. Vs General Motors Co. Ltd. (1992) 2 NWLR (222) 132; University of Nigeria Teaching Hospital Management Board Vs Nnoli (1994) 8 NWLR (363) 376”.
I respectfully adopt the reasoning of the Supreme Court above and apply it to the facts of this case. Having held that there was a breach of the principle of fair hearing, I resolve the only issue for determination in this appeal in favour of the appellant. The appeal therefore succeeds and is accordingly allowed. The entire judgment of the High Court of Kano State in Suit No. K/106/2003 delivered by Hon. Justice Mohammed Umaru Alkali on 21/7/03 is hereby set aside. The suit is hereby remitted back to the Kano State High Court for re-trial by another Judge of that court.
I make no order for costs.
Other Citations: (2007)LCN/2315(CA)
