Mallam Garba Yakaje V. Alhaji Gambo Na Haire & Ors (2002)
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SALAMI, J.C.A.
In the proceedings culminating in this appeal, the respondent herein applied ex parte for these reliefs:-
“1. AN ORDER, granting the applicant leave to apply for an order of certiorari to remove, to this Honourable Court, the entire proceedings, rulings and decisions of the 2nd respondent, in case No. ZAC/12x/94: Between Mallam Garba Yakaje v. Alhaji Gambo Na Haire, for being null and void, having been made without fair hearing and without jurisdiction;
- AN ORDER, transferring case No. ZAC/12x/94: Between Mallam Garba Yakaje v. Gambo Na Haire, pending before the 2nd respondent, to any other Magistrate Court in Zaria, on ground of lack of jurisdiction, bias, and lack of fair hearing;
- AN ORDER, compelling the Registrar of the 2nd respondent to produce and forward to this Honourable Court, all proceedings decisions and rulings of the 2nd respondent, in case No. ZAC/12x/94 Mallam Garba Yakaje v. Gambo Na Haire, for the purpose of questioning same for being null and void, having been made without fair hearing.
- AN ORDER, setting aside the order of the Magistrate, given ex parte transferring the possession of the applicant’s land to the 1st respondent, made on 22/4/96, as such issue has never been heard before the Magistrate.”
The ex parte application was supported by “facts verification affidavit” to which only grounds on which the application was sought was attached. The decision and the proceedings sought to be quashed were not considered relevant to the determination of the application and was therefore, not attached to the motion papers. The learned trial Judge, Makeri, J., nevertheless, took the application accordingly and granted all the reliefs set out earlier in this judgment, without putting second and third respondents as well as the appellant herein on notice.
The appellant was naturally dissatisfied with the decision of the court below, and has appealed to this court, on one ground of appeal, from which two issues were distilled in the brief of argument, subsequently filed on his behalf by his learned Counsel. The two issues formulated from the sole ground of appeal read as follows:-
“(i) Whether or not, the lower court was justified in making an absolute order upon an ex parte application without hearing the appellant?
(ii) Was the appellant’s constitutional right to fair hearing not breached?”
Generally, a practice of framing more than one issue from a single ground of appeal, is not encouraged. Both the Supreme Court and this court frown at this practice: Chevron (Nig.) Ltd. v. Onwugbelu (1996) 3 NWLR (Pt. 437) 404, 414; Aniekwe v. Okereke (1996) 6 NWLR (Pt. 452) 60. But the second issue herein raises an issue of fundamental right to fair hearing, which is equally in accord with the natural justice principle of audi alteram partem. Our courts have been exhorted to take issue of breach or threatened breach of the provisions of Chapter IV of our Constitution even though such issues do not arise from any of the adumbrated grounds contained in the relevant memorandum of appeal: Nnamdi Azikiwe University v. Nwafor (1999) 1 NWLR (Pt. 585) 116, 133.
The respondent did not file his brief of argument and the appeal will be heard solely on the appellant’s brief. In considering the appeal, I propose to take both issues together.
It may be apt, at this stage to succinctly state the facts of the case. The appellant lodged a complaint of criminal trespass and mischief against the respondent at the Chief Magistrate’s Court No. 4, Chediya, Zaria. The nature of complaint at the Chief Magistrate Court, was that the respondent had trespassed on the appellant’s farmland and cut down his economic trees. Respondent, after the matter had been reserved for judgment and before the Chief Magistrate delivered his judgment, sought for in the High Court 1, Zaria, and was granted the reliefs which resulted in the instant appeal.
The prayer for leave to apply for an order of certiorari as well as order, quashing the decision of the Chief Magistrate were argued, considered and granted in the application for leave to apply for an order of certiorari without respondent filing a motion on notice, whereby the appellant would be placed on notice not to talk of offering him opportunity to proffer a defence thereto.
At the hearing of the appeal, both parties had no appearance and the appeal was deemed argued on the brief filed, the court having satisfied itself that both parties had been served.
It was contended in the appellant’s brief that when leave is granted the respondent is required to put the appellant on notice by serving a motion on notice on him. The said motion, learned Counsel further contended should be entered for hearing within 14 days.
Learned Counsel in the appellant’s brief, submitted that learned trial Judge failed to comply with the provisions of Order 42 rule 5 of the Kaduna State High Court (Civil Procedure) Rules, 1987. Learned Counsel further submitted that rules of court are made to be obeyed on the authority of Williams v. Hope Rising Voluntary Funds Society (1982) 1 – 2 SC 145, 152.
It was further contended that the learned trial Judge made an order affecting his interest, without ever putting him on notice and hearing him before an order affecting his interest, contrary to the provisions of section 33 of the Constitution of the Federal Republic of Nigeria, 1979, without hearing him.
I agree with the learned Counsel for the appellant that, the learned trial Judge guffed in granting the respondent’s prayers without hearing nor offering the appellant opportunity to be heard. It is ironic that the learned trial Judge lent himself to such travesty of justice, when it was for the same failure or denial of hearing that led to his setting aside the decision of the Chief Magistrate’s Court, 4, G.R.A., Zaria. It is, therefore, surprising why he himself, should fall into the same trap or pitfall.
The words of Order 42, rules 1, 2 and 5 of the Kaduna State High Court (Civil Procedure) Rules, Cap. 68 of the Laws of Kaduna State of Nigeria, 1991, are clear, unambiguous and unequivocal. An application for an order of mandamus, prohibitions, certiorari or an injunction restraining a person from acting in an office in which he is not entitled shall be made by way of application for judicial review.
Such application shall not be made, unless there is leave of court sought and obtained in accordance with the provisions of Order 42 rule 3. The application for leave shall be made ex parte to the court except during vacation when it may be made to a Judge in chambers.
The same shall be supported by a statement, setting forth the name and description of the applicant, the relief sought and the grounds upon which it is sought and by affidavit verifying the facts relied on.
It is after seeking and obtaining leave pursuant to Order 42 rules 1, 2 and 3 thereof that, the stage is set for the applicant to make his application for a judicial review by originating motion except during vacation, when it may be made by originating summons to a Judge in chambers. Paragraph 3 of rule 1 requires that the notice of motion or summon, as the case may be, shall be served on all persons directly affected and where it affects a proceedings in a court and the object of the application is to compel the court or its officer to do any act in relation to the proceedings or to quash them or any order made therein the notice of summons shall be served on the clerk or registrar of court and, where any objection is to the conduct of the Judge is taken on the Judge. Unless, it is otherwise directed by the Judge granting leave, there must be 10 clear days between the service of motion on notice or summons and the date fixed for the hearing.
The motion itself, must be entered for hearing within 14 days of granting of leave to apply for the judicial review. There is, therefore, merit in the submissions of the learned Counsel for the appellant that the provisions of Order 42 rules 1, 2, 3, 5(1)(3)(4) and (5) were complied with more in breach than in compliance. The learned trial Judge misconceived the provisions of rules 1, 2, 3 and 5, of Order 42, Cap. 68, by short-circuiting the procedure. The learned trial Judge in considering application for leave which is invariably ex parte has no basis for considering and granting the reliefs in respect of which the leave to apply for them was being sought. It is only after securing the leave could another application be brought in the nature of motion on notice or summons asking for reliefs such as the type already granted. The respondent or the respondents to the motion on notice or summons as the case may be, would be put on notice of at least ten clear days before the application is due for hearing. The learned trial Judge acted under misapprehension when it rolled the two requirements together and determined them pari passu thereby waiving the requirement for a motion on notice or summons to be served on the respondent or respondents thereto.
Learned trial Judge’s failure to comply with or observe the provisions of Order 42 rules 1, 2, 3 and 5, is fatal to his determination. Rules of court are meant to be obeyed or observed and not to be disobeyed or disregarded or neglected: Ekpan & Anor. v. Uyo & Anor. (1986) 3 NWLR (Pt. 26) 63, 76. Since rules of court are made to be obeyed or observed by both the court and the parties to the proceedings and the trial Judge neglected to do so, the reliefs granted are not only premature but also in excess of jurisdiction of the trial court. The adoption of the unorthodox procedure by the learned trial Judge deprived the appellant as well as other respondents to the said application of their right to fair hearing which is guaranteed under S. 33 of Chapter IV of our 1979 Constitution. The Constitution and the principles of natural justice demand that both parties to an adjudication should be heard. This is what is encapsuled in the Latin maxim of audi alteram partem. See also the decided cases Kotoye v. Saraki (1994) 7 – 8 SCNJ 561, (1994) 7 NWLR (Pt.357) 414; Olumesan v. Ogundepo (1996) 2 NWLR (pt.433) 628; (1996) 2 MAC 226,233; Garbo v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550 and Adigun v. A.-G., Oyo State (No.1) (1987) 1 NWLR (Pt. 53) 678, 707-708.The procedure adopted by the learned trial Judge is, according to the learned Counsel for appellant, alien to our adversary system of administration of justice, which guarantees a party to proceedings a right to be heard in determination of his civil rights and obligation.
The proceedings conducted by the learned trial Judge without hearing the appellant is prejudicial and is in contravention of the provisions of section 33 of the 1979 Constitution, as well as the principle of natural justice which requires that the other side should be heard.
There can be no fair hearing where a court decides a matter on the evidence of only one party to the either neglect or disregard of the evidence of the other side to the case. The default has thereby vitiated the trial. Consequently, the decision of the trial court is null and void: Salu v. Egeibon (1994) 6 SCNJ 223,239; (1994) 6 NWLR (Pt.348) 23, and Adigun v. A.-G., Oyo State (1987) 1 NWLR (Pt. 53) 678, 707-708.
The appeal succeeds and it is allowed. The decision of Makeri, J., in suit No. KD/Z/125/M/96 delivered on 19th December, 1996, without hearing the other side or at least putting them on notice contrary to the clear intention of Order 42 rules 3 and 5 of the High Court (Civil Procedure) Rules, Cap. 68 is declared null and void.
The same, without further assurance, is hereby set aside. The first respondent’s motion ex parte is dismissed with costs which is assessed at N5,000.00 to the appellant.
Other Citations: 2002)LCN/1179(CA)
