Okeke V. Uwaechina (2022)

LAWGLOBAL HUB Lead Judgment Report

ABDU ABOKI, J.S.C. 

This an appeal against the judgment of the Court of Appeal, Enugu Division.

The concise statement of facts leading to this appeal is that the Appellant, as Plaintiff, instituted an action at the Customary Court of Anambra State, against the Respondent’s father, (who upon his death, was substituted by the present Respondent), seeking the following reliefs:

1. A declaration that the Plaintiff is entitled to customary right of occupancy over the parcel of land known as “Ana Ikpalani Anekwe” situate at Ngo Igbo-Ukwu.
2. An order of injunction preventing the defendant, his agents, servants or privies from further entry into the land.

The Respondent did not counter-claim.

At the end of trial, the trial Customary Court dismissed the Appellant’s claims and granted title to the Respondent, in the following terms:

1. That Mr. Israel Uwaechjna be and is hereby granted Customary Right of Occupancy over the land known and called “Ana Uwudiogwugwu” otherwise called “Ana Ikpala/Anaekwe” situate at Akama Ngo Igbo Ukwu
2. That Dr. Christian Okeke is hereby restrained by perpetual injunction with his agents, servants or privies from further entry into the said land.”

Aggrieved by this decision, the Appellant appealed to the High Court of Anambra State, in its appellate jurisdiction, arguing inter alia, that the Customary Court doled out reliefs to the Respondent which he did not seek for.

In its judgment delivered on the 30th of January, 2007, the High Court allowed the appeal and held thus:

“l do not intend to waste my time over this appeal. No matter how well a case is presented and argued, the fundamental error which rocks the whole case and knocks the bottom out of that case, cannot make the case right. The Plaintiff claimed certain reliefs. The Defendant did not counter-claim. If the Plaintiff does not prove his case, the only option open to the trial Court is to dismiss the Plaintiffs’ case. The trial Court must not give to the Defendant what he did not claim. By giving judgment in favour of the Defendant, when the defendant neither counter-claimed nor asked for judgment, the Igboukwu customary Court committed a fundamental and incurable error. That error was tantamount to gross miscarriage of justice and the onlyoption open to this Court is to allow the appeal…”

The Respondent was aggrieved by the decision of the appellate High Court and appealed to the Court of Appeal, Enugu Division.

At the Court below, it is the story of the Respondent that he had difficulty in effecting service on the Appellant herein. He therefore obtained an order of substituted service for the service of the Court processes (including the Notice of Appeal), on the Appellant herein, by pasting them on the door/gate of his permanent house address at Akama Ngo Village, Igboukwu.

After several adjournments due to the Appellant’s inability to attend Court despite repeated service of hearing notice on him, the Respondent moved the Court below to hear the appeal on the Respondent’s brief alone.

In its judgment, the Court below allowed the appeal and held inter alia, thus:

“In the light of my discourse as in this judgment, the appeal is allowed as Issues 1 and 3 are hereby resolved in favor of the Appellant, while issue 2 is answered in the affirmative. In effect, the appellate decision or judgment delivered at the High Court of Justice, Aguata Judicial Division, holden at Ekwulobia on 31/1/2007 per Hon. Justice C.O. Amaechi, is set aside. I order a rehearing of the said appeal at the same High Court, now differently constituted.”

(See page 124 of the Record)

The Appellant, dissatisfied with this decision, lodged an appeal at this Court. His Notice of Appeal filed on the 26th of November, 2014, contains four (4) grounds of Appeal, from which he submitted four issues for determination in his amended brief of argument filed on the 17th of June, 202. They are:

1. Whether hearing the Respondent’s case alone without service and non-consideration of the Appellant’s application for leave to hear his case on the merits which was pending before the Court below is not a breach of the Appellant’s right to fair hearing, guaranteed by Section 36(1) of the CFRN 1999, as amended.
2. Whether it is not a dereliction of sacred judicial duty for the Court below to put aside the applications pending before it and proceed to enter judgment for the Respondent which judgment occasioned a miscarriage of justice on the Appellant?
3. Whether the Court of Appeal was right when it failed to hold that the purpose of theconsequential order is not to grant an entirely new, unclaimed and/or improper relief which was not contested by the parties at the trial Court and was not in contemplation of the parties, especially in this case where Respondent claimed nothing.
4. Whether the Court of Appeal was right when it relied on a minor error or mistake made by the appellate High Court and allowed the appeal especially in the circumstances of the instant case where the alleged error occasioned no miscarriage of justice.

These issues were adopted by the Respondent, in the Respondent’s amended brief of argument deemed filed on the 24th of October, 2018.

ISSUE ONE

Whether hearing the Respondent’s case alone without service and non-consideration of the Appellant’s application for leave to hear his case on the merits which was pending before the Court below is not a breach of the Appellant’s right to fair hearing, guaranteed by Section 36(1) of the CFRN 1999; as amended.

I have read through the submissions made by learned counsel on both sides. The pith of the arguments of learned Counsel on behalf of the Appellant, is that the Appellant was not notified of the pendency of this matter at the Court below.

He contended that the Appellant was denied of his right to fair hearing, when the appeal was heard on the Respondent’s brief alone and urged this Court to hold that the Appellant’s right to fair hearing guaranteed under Section 36(1) of the CFRN 1999 as amended, was breached.

The Respondent argued otherwise. According to learned Counsel for the Respondent, the Appellant was given the opportunity to be heard and chose not to utilize same. He made copious references to various pages of the record and urged this Court to hold that the Appellant’s right to fair hearing was not infringed upon by the Court below.

The central issue in the resolution of this issue is whether the Court below acted within the law, when it heard the appeal as uncontested, following its order of 3rd June 2013 granting the Respondent’s application that the appeal be heard solely on the Respondent’s brief.

It is a fundamental requirement of our adversarial system of administration of justice, that a party to the litigation before the Court must be heard before the Court can determine his civil rights or obligations before it.

The CFRN 1999 as amended, provides in Section 36(1) thus:-

“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.”

This Court, in an unending chain of cases holds any proceedings wherein a breach of the foregoing Section of the Constitution is occasioned, a complete nullity. The Section is fundamental and must be adhered to strictly by all Courts of record. Any breach of the Section renders the entire proceedings where the breach is occasioned null and void. See:

Nwabueze v. The People of Lagos State (2018) LPELR-44113 (SC);

Poroye & Ors v. Makarfi &Ors (2017) LPELR-42738 (SC);

Nwokoro & Ors v. Onuma & Anor (1990) LPELR-2125 (SC).

The arguments of the Appellant in the instant appeal is that he was denied his right to fair hearing, as guaranteed by Section 36(1) of the CFRN 1999, as amended, when the Court below heard the appeal on the Respondent’s brief of argument alone. The question to be answered is whether the Court below acted within the law.

To answer this question, recourse must be had to the Record of Appeal, a scrutiny of which reveals that the contention of the Appellant, that he was not aware of the pendency of the appeal, is at variance with the record.

It is not in dispute that the Respondent on the 14/07/2010, obtained an order ex-parte for substituted service of the Notice of Appeal, on the Appellant, by pasting same at the door/gate or other conspicuous place in his permanent house address situate at Akama Ngo Village Igboukwu. (See page 89 of the Record.) Page 103 of the Record contains CIVIL FORM 14, which is a summons by the Registrar of High Court to the parties, to settle the Record of Appeal. At page 104 of the Record, there is indicated, an Affidavit of Service of the CIVIL FORM 14, by the Bailiff of the High Court, attesting to the fact that the CIVIL FORM 14 was served on the Appellant.

It is also manifest from the record that the motion to hear the appeal on the Respondent’s brief alone, which was filed on the 13th day of July, 2011, suffered several adjournments before it was heard on the 3rd of June, 2013 and granted. The Court below elicited from the Registrar of Court that the motion on notice was duly served on the Appellant on the 8th of May, 2013, by substituted means. See Pages 115 of the Record.

On the 5th of May, 2014, the Appellant was represented by Counsel when the appeal was adjourned for hearing. The appeal was heard on the 26th of June, 2014 and the Court below was satisfied that the Appellant was duly served. The Appellant was aware of the appeal at all times and on the 5th of August, 2014 filed an application for extension of time to file his brief. See the additional record of appeal. He stated that he became of the appeal following a hearing notice served on him on 14th February, 2014.

The implication of all that I have been saying, is that the Appellant, had knowledge of the pendency of the appeal, and failed to take requisite steps. By being served with the CIVIL FORM 14, which is a summons to settle the Record of Appeal, (and which presupposes that there is an appeal) and by pasting the Notice of Appeal and other processes at his permanent house address situate at Akama Ngo Village Igboukwu, (an address he provided himself, as borne out of pages 1 and 51 of the Record), the Appellant had knowledge of the pendency of the appeal. He cannot therefore be heard to complain of lack of fair hearing.

It has been held severally by this Court that where the Court creates an enabling environment for the parties to ventilate their grievances either in the prosecution or defence of their case, the failure of a party to take advantage of such conducive environment cannot be the basis for a complaint of lack of fair hearing. See Ayoade v. The State (2020) LPELR-49379 SC.

Consequently, I hold that the Appellant was not denied his right to fair hearing and this issue is therefore resolved against him.

ISSUE TWO

Whether it is not a dereliction of sacred judicial duty for the Court below to put aside the applications pending before it and proceed to enter, judgment for the Respondent which judgment occasioned a miscarriage of justice on the Appellant?

It is submitted for the Appellant that the Court below was under an obligation to hear and dispose of the Appellant’s pending motion for hisbrief to be heard, and failure to do so amounted to a denial of fair hearing. Reliance was placed on these cases:

Kotoye v. Saraki (1991) 8 NWLR (Pt. 211) 638;

Enebeli v. CBN (2006) 9 NWLR (Pt. 984) 69.

According to learned Counsel for the Appellant, it is trite that a Court has a duty to hear and determine all applications pending before it on the merit, by giving a ruling one way or another, as the principle of fair hearing demands. He contended that it is a dereliction of the sacred judicial duty for a Court to put aside an application in the proceedings before it and proceed to give judgment. He called in aid these cases, amongst others:

FAAN v. W.E.S (Nig. Ltd) 2018 8 NWLR (Pt. 1249) 219;

Abiara v. RTMCN (2007) 11 NWLR (Pt. 1045) 280.

He urged this Court to hold that the Court below shirked its duty to hear and determine the application before it, and resolve this issue in favour of the Appellant.

For the Respondent, it is submitted that though the authorities cited by the Appellant are good law on this issue, they are not applicable to the instant appeal.

According to learned counsel for the Respondent, once a Court adopts final written address or takes the hearing of an application before it, as in the instant case, what remains will be judgment or ruling and any effort to truncate this process would amount to arresting the judgment/ruling of the Court, which is alien to our jurisprudence. He cited and relied on the case of Newswatch Communication Ltd v. Atta (2006) 12 NWLR (Pt. 993) 144.

This Court is thus urged to resolve this against the Appellant.

The general principle of law, as rightly submitted by the Appellant in all his cited cases, is that all applications properly brought before a Court must be heard. The reasoning behind this principle is well founded because it is only equitable that a party to a cause or matter should be entitled and ought to be given the opportunity to be heard on his application before a decision can be given either in his favour or against him. This re-iterates and affirms the principle of fair hearing as enshrined in our Constitution which demands and establishes that all parties must be heard for proper determination of their case. Any breach of the principle will naturally nullify the proceedings.

See ODEDO V. PDP & ORS (2015) LPELR-24738SC.

Thus, there is bounden duty on the Court to hear all applications pending before it whether they be frivolous or even an outright abuse of the process of Court. It is by hearing the parties that the Court will be in position to determine the nature of application in question, it is not within the jurisdiction, discretion or competence of a Court to refuse to take a pending process before it.

See also:

Abah v. Monday &Ors (2015) LPLER-24712 SC.

Having said that, it must be borne in mind always, that each case must be considered on its own particular or peculiar facts or circumstances. No one case is identical with the other or another. They may be similar, but never identical. This is so, as it is settled that a decision is only an authority for what it decides and nothing more.

See:

Skye Bank v. Akinpelu (2010) LPELR-3072SC;

Admin. & Exec. of the Estate of Abacha v. Eke-Spiff &Ors (2009) LPELR-3152 SC.

In the instant case, and as rightly submitted by learned Counsel for the Respondent, even though the cases cited by the Appellant represent the position of this Court with regards to the settled principle of law that all applications properly brought before a Court must be heard, they are not apposite in the instant appeal. This is because in the instant case there is an extant order which, having not discharged, is binding on the Court below.

The problem the Appellant faces in this appeal is that he did not take steps to have the order made on the 3rd of June 2013; that the appeal be heard on the respondent’s brief alone, discharged/set aside. The position of the law is that a judgment or order of every law Court remains in force and binding until it has been set aside by a Court of competent jurisdiction.

See:

Kubor & Anor v. Dickson &Ors (2012) LPELR-9817 SC;

Afolabi v. The State (2016) LPELR-40300 SC.

There is no appeal against that order of 3rd June, 2013 which the Respondent, (Appellant at the Court below), obtained ex parte against the Appellant herein. For as long as that order remains extant, it remains valid and enforceable and it behooves the Appellant to submit to it; just as the Court below was entitled to enforce it as it did.

The Order of 3rd June, 2013 was binding on the Appellant and the Court below. When the Appellant allegedly became aware of the pendency of the appeal on the 14th of February, 2014, he did not take the necessary steps to have the order set aside. Rather, he waited for about six months, (5th August 2014), to file his application for extension of time to file his Respondent’s brief of argument. What that implies is that the Court below had only one duty and that was to hear the appeal as uncontested and deliver its judgment.

I agree entirely with the submissions of the Respondent that the Appellant treated the appeal with levity, despite being afforded the opportunity to be heard.

The Court below therefore acted within the law when the appeal was heard as an uncontested appeal. There was no miscarriage of justice.

This issue is resolved against the Appellant.

Issues three and four are considered together.

ISSUE THREE

Whether the Court of Appeal was right when it failed to hold that the purpose of the consequential order is not to grant an entirely new, unclaimed and/or improper relief which was not contested by the parties at the trial Court and was not in contemplationof the parties, especially in this case where Respondent claimed nothing,

ISSUE FOUR

Whether the Court of Appeal was right when it relied on a minor error or mistake made by the appellate High Court and allowed the appeal especially in the circumstances of the instant case where the alleged error occasioned no miscarriage of justice.

It is submitted for the Appellant the since it is in contest that the trial Customary Court awarded to the Respondent what he never solicited for, the appellate High Court had no other consequential relief to grant him than to allow the appeal of the Appellant. According to learned counsel for the Appellant, the judgment of the appellate High Court was a final and complete decision and it bordered on mere semantics and splitting of hairs when the Court below opined that after allowing the appeal, the appellate High Court ought to set aside or affirm the decision by way of consequential order.

​

It is further contended for the Appellant that the Court below was in error, when it relied on the fact that the appellate High Court did not grant a consequential order, to set aside the judgment of the appellate High Court. He maintained that the fact that the appellate High Court did not make a consequential order did not occasion a miscarriage of justice and the Court below was in error to have set aside the judgment of the appellate High Court on that ground.

This Court is urged to so hold and resolve these issues in favour of the Appellant, and allow the appeal.

For the Respondent, it is submitted that the Court below was in order when it held that the appellate High Court, having allowed the appeal as it did, the need also arose for the same Court to make certain pronouncements on the fate of the judgment delivered at the trial customary Court.

Learned Counsel argued that there was need for certain specific orders to be put in place, relative to the judgment, arising naturally from the appeal being allowed, as failure to do so will render the judgment as inconclusive and inchoate and the same can be set aside on that account. He relied on the case of Okeke v. Modu (1996) NWLR (Pt. 470) 121.

He posited that while the law is that it is not every error in a judgment that may lead to it being set aside, the judgment of the appellate High Court being inchoate, and which occasioned a miscarriage of justice was rightly set aside by the Court below. Reliance was placed on the case of Faleye v. Dada (2016) 15 NWLR (Pt.1534) 111.

This Court was urged to resolve these issues against the Appellant and dismiss the appeal.

It is a general principle of law that a consequential order is essentially one which would make the principal order effectual and effective. In other words, it is one which has a bearing with the main reliefs(s) claimed by a party. It is thus granted usually to give meaning and effect to the main relief(s) as such a consequential order can only relate to the matters adjudicated upon.

See:

Nyako vs Adamawa State House of Assembly (2016) 12 SC (Pt VII) 112;

Oyeyemi &Ors vs Owoeye& Anor (2017) 12 NWLR 9pt 1580) 364.

It must however be stated in very clear terms, that a Court should not see the power to make consequential order(s) as a blank cheque to go on an unended voyage of discovery to make orders that are in conflict with the reliefs.

In Awoniyi v. Reg. Trustees of AMORC (2000) 10 NWLR (Pt 676) 522, this Court re-stated the purpose of aconsequential order:

“The purpose of a consequential order is to give effect to the decision or judgment of the Court but not by granting an entirely new, unclaimed and/or incongruous relief which was not contested by the parties at the trial and neither did it fall in alignment with the original reliefs claimed in the suit nor was it in the contemplation of the parties that such relief would be subject-matter of a formal executory judgment or order against either side to the dispute. It need not be claimed. A consequential order may also not be properly made to give to a party an entitlement to a relief he has not established in his favour.

See also:

Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423;

Dec Oil & Gas Ltd v. Shell Nig. Gas Ltd (2019) LPELR-49347 SC;

Liman v. Mohammed (1999) LPELR-1783 SC.

I am therefore in consensus with the Court below, when at pages 123 – 124 of the Record, it held as follows:

“The question in the instant appeal is the propriety or otherwise of the appellate decision of the Court below in allowing the appeal simpliciter in the face of some unresolved claims or issues presented to the Court below sitting on appeal, in terms of the complaints in the Notice of Appeal and the additional Grounds of Appeal. Excepting ground 1 and perhaps Ground 2 of the additional Grounds of Appeal, the appellate decision of the Court below did not address issues raised or covered by grounds 3, 4, 5, 6, 7, 8 and 9 in the additional Grounds of Appeal. The complaint underground 8 in particular, of the additional Ground of Appeal, is a complaint of lack of fair hearing. In the same vein, the Court below made no pronouncement on the finding of fact of the judgment of the trial Court as they relate to findings no. 2, 3, 4, 5, 6, 8, 9 and 10, all of which put together would suggest that the Respondent as Plaintiff, at the trial Court was unable to discharge the burden of proof of his title to the land in dispute. That is one aspect. The Court below has allowed the appeal brought to it as it did, the need arose for the same Court to make certain pronouncements on the fate of the judgment delivered at the trial Court. Certain specific orders needed to be put in place relative to the judgment appealed against as, for instance, whether or not the said judgment was”affirmed” or “set aside” or of such orders arising naturally from the appeal being allowed. Failure to do that will of course, as in the instant appeal, render the decision of the Court below as inconclusive and inchoate and the same can be set aside on that account. In allowing the appeal as it did, the Court below considered issue arising only from ground 1 of the additional Grounds of Appeal at page 48 of the Record of Appeal. Besides ground 1 of the additional Grounds of Appeal, there are several other Grounds of Appeal, the survival of which is not dependent on the additional ground 1. The Court below ought to have adverted its mind to those grounds and address the issues arising therein, but it failed to do so.”

It follows from the above, that the judgment of the appellate High Court was not set aside by the Court below merely on the basis of the lack of consequential orders by that Court, as learned counsel for the Appellant has argued before this Court. As manifest from the above reproduced portion of the judgment of the Court below, the appellate High Court left unresolved, the issues raised or covered by grounds 3, 4, 5, 6, 7, 8 and 9 in the additional Grounds of Appeal, which prompted the Court below to set aside the judgment and order a rehearing of the appeal, to enable the appellate High Court address the issues so raised in the additional grounds of appeal.

This is in tandem with the numerous decisions of this Court that it is imperative for intermediate Courts to make a definite finding on the issue(s) presented before it and to resolve same one way or the other, even if the appeal had been disposed of by only some of the core issue(s) for determination.

See :

Ikpeazu v. Otti &Ors (2016) LPELR 40055 (SC);

Agbareh & Anor v. Mimra &Ors (2008) LPELR-43211(SC).

Having failed to make definite findings on all the issues presented before it, the Court below was on terra firma, when it set aside the judgment of the appellate High Court and ordered a rehearing of the appeal.

Consequently, I resolve issues three and four against the Appellant.

In the final analysis, this appeal fails in its entirety, and it is accordingly dismissed. The judgment of the Court of Appeal, Enugu Division, delivered on the 24th of September, 2014, is hereby affirmed.

Parties to bear their costs.

Appeal dismissed.

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SC.855/2014