Oron Local Government Council & Ors V. Akwa Ibom State House of Assembly & Ors (2006)
LawGlobal-Hub Lead Judgment Report
NWALI SYLVESTER NGWUTA, J.C.A.
This appeal originated from an aftermath of the dissolution of the Oron Local Government Council, Akwa Ibom State by the State Legislature. The Akwa Ibom State House of Assembly, by its resolution of 9th March, 2006, dissolved the Oron Local Government Council, the 1st Appellant herein.
The dissolution of the 1st Appellant directly and adversely impacted on the 2nd to the 11th appellants who were elected members of the 1st appellant i.e. the Oron Local Government Councils.
As a result of the dissolution of the 1st appellant by the 1st Respondent, allegedly aided by the 2nd & 3rd Respondents, the appellants instituted Suit No HOR/19/2006 at the High Court of Akwa Ibom State, Oron Judicial Division seeking both declaration and injunctive reliefs against the respondents as defendants.
Based on their perceived want of integrity of the learned trial Judge, Okpo J, resulting from His Lordship’s handling of interlocutory motion in the Suit, coupled with the learned Judge’s alleged physical and mental impairment, the respondents brought an application HU/MISC/115/06 in the High Court, Uyo Division before the Hon. Chief Judge of the State, seeking an order to transfer Suit No HOR/19/2006 from the High Court Oron to the High Court, Uyo for hearing and determination. The motion dated 27/3/06 and filed on 28/3/06 was fixed for hearing on 4/4/06. On the hearing date 4/4/06 learned counsel for the respondents in the motion, now appellants herein, was not in court having written for an adjournment on account of a prior fixture (CA/C/62m/2005) in the Court of Appeal, Calabar Division.
The application was heatedly opposed by learned counsel for the applications, now Respondents. The learned trial Chief Judge subscribed to the several reasons given in opposition to the application for adjournment, disregarded the application as devoid of merit and proceeded to take the arguments of learned counsel for the respondents, (as applicants in the motion). At the conclusion of learned counsel’s submissions, the learned trial Chief Judge, without more, adjourned the motion to 10/4/06 for ruling.
Aggrieved by the proceedings so far the appellant, in a notice and ground of appeal dated and filed on 5/4/06, appealed on one ground, hereunder reproduced, short of its particulars:-
“GROUND OF APPEAL.
(1) The learned trial Chief Judge’s decision foreclosing the plaintiffs/respondents/appellants from being heard on the defendant/applicant/respondent’s motion of 28/3/06 breached their right to fair hearing or natural justice.”
The parties, through their respective counsel, filed and exchanged briefs of argument in compliance with order 6 rules 1(2) and 4(1) and 5 of the Court of Appeal Rules, 2002.
In his brief of argument learned counsel for the appellants framed the following issue for determination:
“Whether given the circumstances the learned Chief Judge was right to have adjourned the matter for his ruling without hearing the appellants and/or their counsel and after hearing the respondents.”
In his brief of argument, learned counsel for the 1st respondent adopted the lone issue framed by learned counsel for the Appellants.
At the hearing of the appeal learned counsel for the appellants adopted his brief of argument as well his reply brief and relying on both briefs counsel urged us to allow the appeal and set aside the proceedings of the lower court dated 4/4/06.
On his part learned counsel for the 1st Respondent adopted and relied on the respondent’s brief and urged us to dismiss the appeal. The 2nd and 3rd Respondents, who are nominal parties in the appeal, did not file briefs but subscribed to the argument in the 1st Respondents brief.
Arguing the lone issue in his brief of argument learned counsel for the appellants impugned the order of the learned trial Chief Judge adjourning the motion for ruling as a breach of the appellants’ fundamental right to a fair hearing guaranteed by section 36 of the Constitution of the Federal Republic of Nigeria 1999 as well as a violation of the Rules of natural justice. It is the appellant’s case that having heard from learned counsel for the Respondents the learned trial Chief Judge ought not to have adjourned the motion for ruling without hearing the learned counsel for the appellants or the appellants themselves as most of them were in court. Counsel submitted that generally, the issue of fair hearing is one of substance and not form and the issue has to be determined in the light of the realities of the particular case. He relied on Anakweze & Ors v. Tapp Industry Ltd & ors (1991) 7 NWLR (pt 202) 177. Learned counsel cited page 10 of the records and said that the 3rd, 4th, 5th, 6th 10th and 11th appellants were in court as Respondents in the motion on 4/4/06 and argued that it was wrong for the lower court to have adjourned the motion for ruling without the slightest regards to their presence. Learned counsel conceded that the trial court was not bound to grant application for adjournment simply for the asking but submitted judicially as well as judiciously. He relied on George v. George (2000) FWLR (pt 23) 1180, Agbogu vs. Adiche (2003) 2 NWLR (pt 805) 509 at 530 para G, Salanke v. Ajibola (1968) 1 All NLR, 46 at 54, Odusate v. Odusote (1971) 1 AllN LR (pt 1), 219, 273-233 in support of his contention that there is need to weigh the necessity for speedy trial with the request for adjournment. He argued that emphasis on fair hearing is on the parties and relied on Tsokova & Sons Ltd v CFAO (1993) 4 NWLR (pt.291) 120. He relied on Francis v. Osunkwo (2000) FWLR- (pt 14) 2469 in his argument, that the sins of counsel, if any, ought not to be visited on the client who is not blameworthy. He invoked the Supreme Court’s decision in Ogundoyin v. Adeyemi (2000) 13 NWLR (pt 730) 419 paragraphs F-G where Onu, JSC said, inter alia
“….. it is trite law that the court does not normally punish a litigant for the mistakes of his counsel.”
He relied also on the following cases: Agbogu v. Adiche (supra), Ceekay Traders Ltd v. General Motors Co. Ltd (1992) 2 NWLR (pt 222) 132 at 162. State Civil Service Commission v. Buzugbo (1994) 15 NSCE 505 at 513 – 574, Limited Shipping & Trading Co. Inc. v. Agro Allied Development Ent. Ltd (2000) 9 NWLR 91. On the duty of the court to follow the dictates of natural justice he referred to Ogundogin v. Adeyemi (supra) Ojengode v. Esan (7001) 18 NWLR (pt 746) 771 at page 783 para E, Obodo v. Alomu (1987) 3 NWLR (Pt 59) 111, NDIC v. Ecobank of Nigeria Plc. (2003) 11 NWLR (pt 830 73 at 105, Amoo V. Alabi (2003) 12 NWLR (pt 835) 537, United Shipping Trading Co. Ltd v. Agro Allied Developing Ent. Ltd Supra and Unibiz Nig Ltd v. CBCL Ltd (2003)6 NWLR (pt 816) 402 at 433-434.
In his conclusion, however, learned counsel for the appellant contradicted himself when he said in one breath
“…and we urged this Honourable Court to set same aside and return the parties before the learned trial CJ to even-hardness” and in another breath he urged us to hold that in the circumstances of this breach, the learned CJ has disqualified himself from dispassionately considering the issues before him meritoriously.”
He did not make the prayers as alternatives.
Arguing the issue formulated by the counsel for the appellant and adopted by him learned counsel for the 1st Respondent conceded that the issue of fair hearing is one of substance rather than form, and once a breach of the rules of fair hearing is established the, proceedings will be declared invalid irrespective of how well concluded it may have been.
Learned counsel however noted that the issue of breach of fair hearing or observance thereof must be considered on the peculiarities of an individual case. Learned counsel reproduced the doctrine of fair hearing enshrined in S. 36(1) of the 1999 Constitution of the Federal Republic of Nigeria and drew attention to the phrase “in the determination of the civil right and obligation.” He argued, based on the authority of Baba v. NAAATC (1991) 5 NWLR (pt 192) 388 at 401, that the provision relating to fair hearing is inapplicable in absence of a dispute involving the determination of rights and obligations of parties in the matter. Learned counsel, contended that the application from which this appeal arose merely called on the learned Chief Judge to execute an administrative duty, an issue which he asserted the appellants admitted on page 3 of their brief of argument. Counsel referred to S. 42(2) of the High Court Law Cap 55 Laws of Akwa Ibom State and submitted that the State Chief Judge can exercise the power of transfer vested in him suo motu or upon an application from any of the parties. In either case, counsel argued further, the Chief Judge has no judicial duty to hear both parties as no resolution of civil rights or obligation is involved in making the order transferring a case from one Judge to another Judge or Judicial Division to another. He relied on Aliyu v. Ibrahim (1992) 7 NWLR (pt 253) 361 at 364, Egbe Vs. Belgore (2004) 8 NWLR (pt 875) 336 and Okeke J. Okoh (2000) 1 NWLR (pt 642), 641 at 646. He cited Commissioner of Finance v. Ukpong (2000) 4 NWLR (pt 653) 363 at 369 to support his argument that the appellants have no right of appeal under S. 45 of the High Court Law (Supra). Apparently digressing, learned counsel relied on Aliyu v. Ibrahim (Supra) to argue that the appellants’ frivolous appeals and references demonstrate that the exigency upon which they were granted injunction exparte no longer exists. The appeal has no connection with any exparte injunction.
Counsel argued that the bare assertion that a party was denied a fair hearing is not enough to invoke the provisions of S. 36(1) of the Constitution. According to learned counsel, it is a requirement of law that the party alleging a denial of fair hearing has to establish the elements of miscarriage of justice occasioned by the alleged denial of fair hearing. He referred to FRN v. Itegwu (2003) 15 NWLR (pt 842) 113 at 194 and Kenon v. Tekan (2001) 14 NWLR (pt 732) 12 at 19 ratio 3 and argued that the appellants who alleged they were denied fair hearing failed to demonstrate that their right and obligations were affected by the order of the learned Chief Judge transferring the case from Oron to Uyo. He argued further that there is no vested right in any party to be heard in a particular court adding that forum for the trial of any case depends upon the imperatives of law and the need for justice and fairness. He added that justice is a three-way traffic. In conclusion learned counsel for the 1st respondent urged as to dismiss the appeal for lack of merit and as frivolous and time wasting.
In his reply brief learned counsel for the appellants distinguished the facts of this case from the facts of the cases relied on by the 1st respondent. He cited the cases of Bamaiyi v. A-G of the Federation (2001) 7 SCNJ 346 at 355 and Kalu v. Odili (1992) 5 NWLR (pt.240) 630 at 189 and submitted that the refusal of the application for adjournment in the circumstances was a decision within the meaning of S. 318(1) of the 1999 Constitution. He referred to Ogolo v. Ogolo (2000) 5 NWLR (pt 972) 163 at 187 where Onnoghen JSC held that “for instance a decision by a court refusing an application to transfer a case is a final decision since it has finally determined the right of the parties as to whether or not to transfer the case.”
Concluding, learned counsel urged us to discountenance, in the light of the authorities relied on, the argument of learned counsel for the 1st respondent that the learned Chief Judge was performing an administrative duty of a “mere act of transfer” of a “likely harmless nature”. He urged the court to allow the appeal.
As indicated earlier the learned counsel for the 2nd and 3rd respondents filed no brief of argument. They would rather, as it were, sink or swim with the 1st respondent.
The issue framed by the learned counsel for the appellants and adopted by the 1st respondent is appropriate and I adopt same in determining the appeal.
Learned counsel for the 1st respondent conceded in his brief of Argument that compliance vel non with the principle of fair hearing enshrined further that where a breach of the provision of S.36(1) of the Constitution is one of substance, not form. He conceded further that where a breach of the provision of S. 36(1) of the Constitution is established the proceedings in which it is established will be nullified without regard to the fact that the proceedings were well conducted. However, learned counsel pointed out that the issue of breach of, or compliance with, the provisions of S.36(1) of the Constitution must be determined on the peculiar circumstances of each case. S. 36(1) of the Constitution 1999 provides 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..”
Learned counsel underscored the phrase “in the determination of the civil rights and obligations” and argued that the civil rights and obligations of the appellants are not in issue and so cannot be infringed. I agree with the learned counsel for the 1st Respondent that the provisions of S. 36(1) of the Constitution cannot be successfully invoked where the civil rights and obligations of the person seeking to invoke the provisions are not in issue. However the words “right” and “obligations” as used in S.36 (1) of the Constitution are not esoteric. They are used in their ordinary and natural meanings and when the appellants instituted suit No. HOR/19/2006 in the High Court of Akwa Ibom State, Oron judicial Division, they acquired a right to have their dispute with the respondents resolved in that court within a reasonable period of time. In the same vein they assumed the obligation to prosecute, with due diligence, their case at the High Court, Oron On the facts before us, rights and obligations must be viewed in the light of time frame and location. The order of transfer from Oron to Uyo is a change of venue as well as time for the hearing and determination of the Suit. It will alter the appellants estimated costs of litigation in terms of time and money. The appellants’ rights in the sense of demand inherent in them and incident on the respondents will be determined with respect to time and place by an order of transfer from Oron to Uyo. The same applies to the inevitable corollary of their right to have their case determined at the High Court Oron, that is their obligation to prosecute their case against the respondents in that Court. The appellants’ right and obligations in respect of their suit in the High Court Oron, are determined and extinguished by the order of transfer, giving way for new rights and obligation in the suit in the High Court, Uyo. Even on the cases relied on by the 1st respondent particularly Baba v. NAATC (supra) I hold that the provisions of S.36 (1) of the 1999 Constitution of Nigeria are applicable to the facts of this case. Again I am constrained to accept the argument of learned counsel for the 1st respondent on S. 42 (1) of the High Court Law Cap 55 Laws of Akwa Ibom State, which provides that
“The Chief Judge may by order under his hand and seal of the court at any time or at any stage of the proceedings before final judgment and either with or without application from any of the parties, transfer any case or matter before a Judge to any other Judge.”
The section invests in the State Chief Judge a duality of powers in the transfer of cases from one Judge to another Judge of the State High Court:
- The Chief Judge has power to order a transfer suo motu.
- His Lordship has power to order a transfer upon an application from any of the parties to the action. In the exercise of the powers above the Chief Judge is merely acting administratively and the issue of lack of fair hearing cannot avail a party raising it in the circumstances. However, if the application for transfer is predicated on alleged criminal acts a transfer would imply a tacit condemnation of the person complained against and it does appear that the wider concept of Audi Alteram Parterm would require that the “accused” be afforded the opportunity to react to the allegation against him before decision is taken on the application. Be that as it may, this is not the issue here.
Clearly there is no right of appeal where the Chief Judge, in his administrative capacity, transfers a case from one Judge to another Judge either suo motu or upon the application of a party to the suit. Learned counsel for the 1st respondent seemed of the view that a transfer can only be made under S. 42 (1) of the High Court Law or that “application from any of the parties” (See S.42 (1) of the High Court Law) is synonymous with an application or motion filed in court praying that a case be transferred from one Judge to another Judge as in this case. On the other hand learned counsel for the Appellants stated a 3rd procedure in transfer of cases from one Judge to another Judge and that is transfer by judicial process, quite out of the contemplation and intendment of S.42 (1) of the Akwa Ibom State High Court Law.
When the Chief Judge transfers a case pursuant to S.42 (1) of the High Court Law His Lordship is answerable to none other than his conscience. There is no right of appeal against the exercise of the power vested by S.42 (1) of the Law. However an application or a motion for transfer filed in court is outside the ambit of S.42 (1) of the Law. The decision to allow or grant such motion is within the discretion of the Chief Judge in his judicial capacity as distinct from his administrative function. It has become an article of faith that the exercise of court’s discretion be both judicial and judicious.
My Lords, the question is “Does the proceeding conducted by the learned Chief Judge on 4/4/06 culminating in the order adjourning the motion for ruling answer to the meaning of judicial and judicious exercise of discretion? The answer to the above poser is in the records of the proceedings conducted by the learned Chief Judge on 4/4/06. It appears a case of Res Ipsa Loquitor and the records will speak and provide the answer to the question.
The motion No HU/MISC/115/06 for transfer of Suit No HOR/19/2006 pending at the High Court Oron before Okpo J to the High Court Uyo Judicial Division for hearing and determination was dated 27/3/06 and filed in court the next day 28/3/06. The motion was fixed for hearing on 4/4/06. It is reasonable that respondents, now appellants and/or their counsel, knew of the fixture from the motion served on them but the records does not contain the date of such service safe for the assertion of learned counsel for the respondent that the motion was served on 28/3/06.
The record of the court on 4/4/06 showed, inter alia.
“Parties absent except the 3rd, 4th, 5th, 6th, 9th, 10th, and 11th Respondents. Mr. Emmanuel Enoidem for the 1st defendant/applicant, with him Messrs Peter Ndem, Mathew Ukpong and Enobong Eyo. Mr. I. E. Ukanna for the 2nd and 3rd defendants/applicants. Mr. Ekpenyong Ntekim for the plaintiffs/respondents absent but has written.”
It should be pointed out here that the only applicant in motion is the 1st defendant in Suit No HOR/19/2006 2nd and 3rd defendants in the main suit are not 2nd and 3rd defendants/applicants in the motion as shown in the records, rather they are respondents.
The application for adjournment in the ground that counsel has a prior fixture in the Court of Appeal was strenuously objected to by learned counsel for the respondents in this appeal and the court in its ruling on the objection, held inter alia:
“I am persuaded by the argument of counsel that the learned counsel for the plaintiffs/respondents have not convinced me why the case should be adjourned to another date.”
With respect, the views of the trial court and learned counsel for the respondent’s run counter to the application for adjournment, the body of which is hereunder reproduced:
“Application for adjournment, Re: Suit No.HU/MISC/115/2006
We are solicitor to the respondent in this application and respectfully apply for adjournment to either 4th May, 2006, 16th May or 22nd May, 2006
The undersigned, who is handling the matter, is at the Court Appeal in Suit No CA/C/62M/2005, appearing with him is our Eyakadue Eniunam Esq.
Our Alfred Edem, Esq. 1st appearing in a longstanding part heard Suit in HA/36/96. Our Ekpo Ntekim Esq. is on a leave while Henry Ekanem Esq. is sick with sceptic boil. Comfort Etim Esq has just joined the Ministry of Justice while Martina Ekong Esq. and Frank Effiong Esq. who have just joined us have not yet assumed duties. We shall be glad to be accommodated, please..”
In view of the above it is difficult to determine what was needed to convince the learned Chief Judge why the case should be adjourned to another date. May be if the learned counsel for the appellants had filed a counter-affidavit in the motion before the court the learned trial Chief Judge would have been favourably disposed to granting an adjournment. However, the issue of counter-affidavit cannot, on the facts before us, be used as a factor for the exercise of discretion in the matter. Learned counsel for the Appellants could file his counter-affidavit before the next date. He could challenge the application on Law or he could concede the transfer but the refusal of the application for adjournment cannot be justified by the stated reasons.
In Okeke v. Orah (1999) 4 SC (pt 11) 37 the Supreme Court stated that adjournments of cases, fixed for hearing are not obtained as a matter of course, but may be granted or refused at the court’s discretion. The court stated/that the exercise of discretion to grant or refuse adjournment is a judicial act against which an aggrieved party may lodge an appeal. However, in order to succeed in an appeal against such exercise of discretion the appellant should satisfy the appellate court that the trial court acted on an entirety wrong principle or failed to take all the circumstances of the case into consideration and that it is manifest that the order would work injustice to the appellant. Not only that the reason for rejecting the application for adjournment was untenable in law and in fact, the effect of the refusal of the application did work injustice on the appellants by denying them the services of their counsel.
In Okoiko v. Esedalue (1974) 3 SC 15 the Supreme Court held that the absence of counsel in court may be excused upon proper application and for good and sufficient reason such as an appearance before a superior court of record. In this case learned counsel’s application for adjournment was not determined to be improper and his appearance in a prior fixture in the Court of Appeal was good and sufficient reason to grant the application for adjournment. Merely subscribing to the reasons given by learned counsel for the respondents in opposing the application for adjournment is not, in my humble view, a judicial and/or judicious-exercise of discretion in rejecting the application for adjournment on the facts before us. Rather than merely subscribing to the view of learned counsel the learned trial Chief Judge should have borrowed a leaf from the British statesman and political theorist, Edmond Burke (17, 29 – 97) who said
“It is not what a lawyer tells me I may do; but what humanity, reason and justice tell me I ought to do.”
It becomes more imperative when the lawyer telling the court what to do is speaking ex parte as in this case.
Whatever reason the court had for the speed exhibited in the proceedings has been beclouded by the consequences of the order made. It is a classical example of those situations where the fact of something over whelms the reason for it. To worsen the situation, for no justifiable reason the court proceeded to hear argument of counsel for the respondents (i.e. 1st applicant and 2nd and 3rd defendant/respondents in the motion without reference to the 3rd, 4th, 5th, 9th, 10th and 11th respondents in the motion. Furthermore, the learned trial Chief Judge, having taken the arguments of the two learned counsel on the other side, adjourned the case for ruling thus “Case adjourned to 10/4/06 for ruling.” Again the 3rd, 4th, 5th, 6th, 9th, 10th and 11th respondents in the motion who were in court were ignored as if they were mere spectators and not parties to the proceeding. If there is any reason for this fire brigade approach to justice it is not apparent in the records of the court on 4/4/06. If this is justice it belongs in the vigilante variety.
In Igbinomwanhia v. N.T.A (1995) 6 NWLR (pt 403) 631 a motion was moved in absence for the party whose case was sought to be dismissed. The court held that the trial court was duty bound to give the party in court the opportunity to conduct his own case or engage the services of another counsel.
That decision is applicable to the facts of this case irrespective of the fact that only a transfer, not dismissal, is in issue herein.
It is of utmost importance in any trial, be it criminal or civil that the procedure of fair hearing be strictly complied with. See P.H. M.B.V “Edosa (2001) 2 SC 180.
The procedure in which counsel’s application for adjournment was refused, the motion for transfer argued in the presence of the respondents in that motion but without reference to them and the matter fixed for ruling without giving the respondents in court the opportunity to reply or seek adjournment for their counsel to reply fell miserably short of the standard or test of fair hearing set by the apex court in Tunbi v. Opawole (2000) 1 SC 1. A reasonable person of average intelligence who watched the drama in court would have left with the feeling that the rejection of the application in the circumstances of this case was high handed. He would have been completely disappointed that arguments were taken and the motion adjourned for ruling with utter disregard of most of the respondents in court. The proceeding taken in the trial court on 4/4/06 not only violated the provisions of S. 36 (1) of the 1999 Constitution but trampled upon the time-hallowed rules of Natural Justice which forms the ordinary rules by which Justice should be administered. See Chief Gani Fawehinmi Vs. The Legal Practitioners Disciplinary Committee (1985) 2 NWLR (pt 7) P. 300 per Oputa, JSC. In the same case Eso JSC observed that;
“Even God himself did not pass sentence upon Adam before he was called upon to make his defence”
The trial court, even by adjourning the matter for ruling effectively deprived the appellants of the warm embrace of the rule of ecclesiastical origin which was articulated, adopted and applied for the first time on the temporal realm in the English case of Rv Chancellor of Cambridge University (1716) 1 Str.557.
For the foregoing I have come to the conclusion that the appeal is meritorious and it is hereby allowed. The proceedings of the trial court up to and including the order adjourning the motion to 10/4/06 for ruling are a nullity as the same were taken in violation of S. 36(1) of the Constitution of the Federal Republic of Nigeria 1999 as well as the time honoured rules of Natural Justice- Audi Alteram Partem. From the provision of S.42 (1) of the High Court Law the power of transfer of a case from one Judge to another Judge is vested in the State Chief Judge, but will justice be done and appear to have been done irrespective of how the learned Chief Judge rules in a subsequent proceedings in the motion? However the power vested in the State Chief Judge by S.42 (1) of the High Court law is limited to transfers suo motu and transfers on application of a party to the Suit, which are not judicial but administrative acts. It is my view that any Judge of the Akwa Ibom State High Court has jurisdiction to entertain a motion as distinct from a mere written application, for transfer of a case from one Judge to another Judge in the State. In the circumstances it is hereby ordered that the motion HU/MISC/115/2006 be assigned by the learned Chief Judge to another Judge of the High Court, Uyo Judicial Division for hearing and determination. There shall be no order for costs.
Other Citations: (2006)LCN/2089(CA)
