The Nigeria Union Of Teachers Taraba State & Ors V. Rev. Sarduana Habu & Ors (2018)
LAWGLOBAL HUB Lead Judgment Report
EJEMBI EKO, J.S.C.
The Respondents were the applicants at the Taraba State High Court, suing for themselves and on behalf of the Academic Staff of Secondary Schools in Taraba State. The Respondents initiated this action at the trial High Court against the Appellants for the enforcement of their fundamental rights guaranteed by Sections 34, 35 and 40 of the Constitution of the Federal Republic of Nigeria, 1999 (the 1999 Constitution) and Articles 2, 5, 6, 10 & 11 of the African Charter on Human Rights (Ratification and Enforcement) Act, Cap 10 LFN 1990. The substance of their suit, brought under the Fundamental Right (Enforcement Procedure) Rules, is that, having withdrawn their membership of and resigned from the Nigerian Union of Teachers (NUT) (the 1st Appellant); their employers, the Taraba State Teaching Service Board [2nd Appellant], was obligated to respect their decision and stop deducting “check off dues and Teachers Welfare Premium” from their salaries and paying over the same to NUT. They insist that such monies cannot be forcefully deducted from their salaries and paid to a
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rival union on their behalf. The Respondents maintain that they have migrated from NUT to another Union called the Conference of Secondary School Tutors (COSST).
The trial High Court (Agya, J.) in its ruling delivered on 4th November, 2003, upon the preliminary objection of the 1st and 6th Respondents in the application, struck out the suit on the ground that it had no jurisdiction to entertain and determine the matter. On appeal by the Respondents herein, the applicants, the Court of Appeal (the Lower Court), upon allowing the appeal, set aside the decision of the trial Court. It further ordered that the suit be heard de novo. This further appeal is at the instance of the aggrieved Appellants, who were the respondents at both the trial Court and the Lower Court. The original Notice of Appeal has seven (7) grounds of appeal. The Amended Notice of Appeal also has seven (7) grounds of appeal from which the Appellants have formulated the following three (3) issues for the determination of this appeal. That is –
- Whether the Court of Appeal was right when it held that the Taraba State High Court of Justice has the jurisdiction to entertain the
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Respondent’s Claim under the Fundamental Rights (Enforcement Procedure) Rules, 1979 [from Grounds 5 and 6 of the Amended Notice of Appeal].
- Whether the decision of the Court of Appeal that there was proof of service on the 1st and 6th Appellants but they absented themselves in Court following which the Court invoked the provision of Order 6 Rule 9(5) of the Court of Appeal Rules, 2002 thereby hearing the appeal before it without the 1st and 6th Appellants, does not constitute a breach of the 1st and 6th Appellants’ rights to fair hearing [From Grounds 1, 2 and 3 of the Amended Notice of Appeal].
- Whether the Suit No.TRSJ/41M/2003 between Rev. SARDUANA HABU & 3 ORS V. NIGERIA UNION OF TEACHERS & 6 ORS. and resultant appeal at the Court of Appeal was properly constituted with regards to the legal personality of the 6th and 7th Appellants [from Ground 7 of the Amended Notice of Appeal].
On 2nd January, 2018, the Respondents herein filed Notice of Preliminary Objection wherein it is contended that “the original Notice of Appeal filed by the 1st and 6th Appellants – dated 7/3/2005 and filed on 8/3/2005 is incompetent and incurably
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defective”.
The Notice of Preliminary Objection was on 8th January, 2015 deemed filed and served. The Preliminary Objection is premised on five (5) grounds, namely:
AND TAKE NOTICE that the grounds upon which this objection are brought are as follows:
- The Original Notice of Appeal filed by the 1st and 6th Appellants is fundamentally defective, and same cannot be cured by an amendment.
- Grounds 4 and 6 of the Original Notice of Appeal filed by the 1st and 6th Appellants are complaints which do not border on the personal grievances of the said Appellants but on the other set of Appellants (2nd, 3rd, 4th, 5th and 7th Appellants) who have no Appeal before this Honourable Court, their notice of Appeal having been withdrawn and struck out.
- Grounds 1, 2 and 3 of the 1st and 6th Appellants’ Original Notice of Appeal are complaints against obiter dicta, rather than the ratio decidendi of the judgment of the Lower Court.
- Ground 5 of the 1st and 6th Appellants original Notice of appeal is a ground of mixed law and fact and same was filed without first obtaining the leave of the Lower Court or this Court.
- Particulars (i),
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(iv) and (vi) of ground 3 and particulars (i), (iv) and (vi) of ground of the 1st and 6th Appellants’ original Notice of Appeal are argumentative and prolix.
I will proceed in this preliminary objection by first re-stating that Section 233(2)(c) of the 1999 Constitution permits the Appellants herein to appeal, as of right, to this Court against “decisions in any civil – proceedings on questions as to whether any of the provisions of Chapter IV of [the Constitution has been, is being or is likely to be contravened in relation to any person”. The applicants, at the trial High Court, brought their application under the Fundamental Rights (Enforcement Procedure) Rules to enforce their rights said to have been guaranteed by Sections 34, 35 and 40 of the 1999 Constitution. These provisions are all under Chapter IV of the Constitution. The rights of the applicants, who now are Respondents herein, sought to enforce against the Appellants herein are fundamental human rights.
Without much ado, it is unambiguously stated in Section 233(2)(c) of 1999 Constitution that appeals to this Court, against any decision of the Lower Court on any question as to whether any
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provisions of Chapter IV of the Constitution, including Sections 34, 35 & 40 thereof, have been, are being or are likely to be contravened in relation to any person are as of right. This Court in JIM-JAJA v. COP, RIVERS STATE (2013) 22 WRN 39; (2012) LPELR -20621 (SC) did recognise this right of the Appellants, though not too explicitly. It recognised that appeals, on any question as to whether a fundamental right provisions in the Constitution have been, are being or likely to be contravened, require no leave, first sought and granted, before such appeals lie to this Court.
The purport of the objection is that the original Notice of Appeal being incompetent and void ab initio could not be amended subsequently as it was incurably defective. The Respondents contend inter alia that grounds 5 and 6 of the Original Notice of Appeal are grounds of mixed law and facts which require leave, first sought and granted, before they could be competent. The complaint in the said ground 5 is that the Lower Court erred in law in holding that the suit at the trial Court was one for the enforcement of the fundamental rights of the applicants at the trial Court. This
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ground clearly comes under umbrage of Section 233(2)(c) of the Constitution. It requires no leave before the appeal on that ground could lie to this Court from the Lower Court. The said ground 5 is, in my firm view, valid and competent. It can alone sustain the appeal.
Grounds 1, 2 & 3 of the Original Notice of Appeal raise complaints about non-service of hearing notice, which are complaints that the Appellants have been denied fair hearing – audi alteram partem – guaranteed by Section 36 of the Constitution. Section 36 right comes within the rights guaranteed by or under Chapter IV of the Constitution. Even if Grounds 1, 2 and 3 were grounds of fact or of mixed law and facts, the Appellants, by dint of Section 233(2)(c) of Constitution, can bring forth their appeal on those grounds without leave of Court first sought and obtained before appeal on those grounds can lie to this Court. Grounds 1, 2 & 3, like Ground 5, of the Original Notice of Appeal can sustain the appeal. The grounds are valid and competent. The Original Notice of Appeal was therefore not incompetent or void ab initio.
The Original Notice of Appeal, as I have demonstrated, so far, is not
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void ab initio. It is amendable, and when amended, the amendment goes to the roots: SALAMI v. OKE (1987) 4 NWLR (Pt.63) 1 at 17; JATAU v. AHMED (2003) FWLR (Pt.151) 1837 at 1896.
The grounds of objection adumbrated against grounds 1, 2 & 3 of the Original Notice of Appeal are that they raise complaints against obiter dicta of the Lower Court. They are not. As I earlier pointed out, they raise complaints that the Appellants, not served hearing notice, were denied fair hearing. That is the core complaint against the decision appealed. Certainly grounds 1, 2 & 3 of the grounds of appeal are not complaints against mere obiter dicta.
With grounds 1, 2, 3 & 5 of the original grounds of appeal being valid and competent grounds sustaining the appeal, my firm view of the preliminary objection, is that it is misconceived. Notice of Preliminary Objection brought pursuant to Order 2 Rule 9(1) of the extant Rules of this Court should have as its object the termination of the appeal in limine. It is viable only when it is capable of completely uprooting and terminating the appeal. As stated in JIM-JAJA v. A.G. RIVERS STATE (supra), a preliminary
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objection is a preemptive strike at the appeal and its resolution will determine whether or not the appeal will be determined on the merit. The instant preliminary objection has failed in that primary objective – that is a pre-emptive strike at this appeal in order to have it terminated in limine. The objection is accordingly overruled. This appeal will, therefore, be heard on its merit.
I shall firstly consider Issue 2, as formulated by the Appellants, for the determination of appeal. The question arising from that issue is: whether the 1st & 6th Appellants were served the hearing notice for, or aware of the proceedings of the Lower Court of 25th November, 2005, culminating in the decision of the Lower Court, the subject of this appeal This is a question of fact.
The Lower Court heard the appeal on 25th November, 2004 – see page 115 of the Record. The minutes of the proceedings clearly show that the 1st & 6th Appellants, as respondents at the Lower Court, were not present, or in attendance, at the proceedings. The Records show that one E.N. Chia, Esq., of counsel was allegedly served the Hearing Notice for the proceedings on 25th November,
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2004, on 6th November, 2004. On the strength or basis of this fact, the Lower Court stated in its judgment at page 122 of the Record.
When this appeal came up for hearing on 25th November, 2004, the Court noted that there was proof of service of the Hearing Notices on the 1st and 6th Respondents’ counsel on 6th November. 2004 ——-
The Lower Court, therefore, proceeded to hear the appeal in the absence of the 1st & 6th Respondents (now Appellants) pursuant to Order 6 Rule 9(5) of the Court of Appeal Rules, 2002. The appeal was treated as having been duly argued.
The said counsel, E. N. Chia, Esq. who was served the Hearing Notice, meant for 1st & 6th respondents/Appellants. The Appellants vehemently insist that E.N. Chia, Esq. was not their counsel. As it appears from page 108 of the Record, the said E.N. Chia, Esq. settled the Appellants’ Reply Brief at the Lower Court. Page 114 of the Record also bears out this fact clearly like also pages 66, 84 and 87 of the Record that E. N. Chia, Esq. was a counsel retained by their opponents at the Lower Court. The Appellants at the Lower Court were the adversaries of the present Appellants who
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were the respondents in that appeal.
The issue is not as tersely reconstructed by the Respondents. Their Issue 2 has been couched thus: Whether the judgment of the Lower Court was a nullity, solely because counsel to the 1st and 6th Appellants was not present in Court to advance oral submissions in support of their brief of argument That is not the issue. The question is: Were the 1st and 6th Appellants (as respondents) put on notice either directly or through their counsel that the appeal against them would be heard on 25th November, 2004
The Respondents, in paragraph 7.02 of their Brief admit that on 25th November, 2004 –
the Court below was wrongly informed by the Court clerk that counsel to the 1st and 6th Appellants had been served with the Court Hearing Notice against that day, which in actual fact same was wrong (sic) served on one E.N. Chia, Esq., who had appeared for the Respondents a couple of times. It was based on that fact, the Lower Court (had) to deem the 1st and 6th Appellant’s appeal as having been argued.
The salient and material facts now admitted, the question begging for answer is: what then is the legal consequence of not serving 1st & 6th Appellants
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Hearing Notice for the proceedings of 25th November, 2004 Admittedly, E.N. Chia, Esq. was not the counsel or one of the counsel engaged by the 1st and 6th Appellants to argue their appeal as respondents at the Lower Court. Mr. E.N. Chia was in fact one of the counsel retained by their opponents.
Relying on ODUTOLA v. KAYODE (1994) 2 NWLR (Pt.324) 1 at 22 B – C; SOCIETE GENERALE LTD. v. JOHN ADEBAYO ADEWUNMI (2003) 29 WRN 37 at 47; A.G. RIVERS STATE v. GREGORY OBI UDE (2007) ALL FWLR (Pt.347) 598 at 614; it is submitted correctly for the Appellants that, service of Hearing Notice is a condition precedent for the invocation of Order 6 Rule 9(5) of the Court of Appeal Rules, 2002. It touches the heart of fair hearing guaranteed under Section 36(1) of the 1999 Constitution; particularly the principle of audi alteram partem. The defect is fatal, for the proceedings are a nullity however well conducted and decided. The defect is extrinsic to the adjudication, as it touches on the competence of the adjudicating body to exercise its jurisdiction in the matter: MADUKOLU v. NKEMDILIM (1962) 1 ALL NLR (Pt.4) 587 at 594; SKENCONSULT v. UKEY (2001) 49 WRN 63 at 86
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The attitude of the Courts to service of Court’s process and the consequence for non-service of Court’s processes were aptly stated thus by this Court in SKENCONSULT v. UKEY (supra) –
The service of process on the defence (or the adversary) so as to enable him appear to defend (or advance) the relief sought against him (or by him) and due appearance by the party or any counsel (retained by him) must be those fundamental conditions precedent before the Court can have competence and jurisdiction. This very well accords with the principles of natural justice.The denial of fair hearing to a party is fatal to the judgment. It renders the proceedings null and void: AKINFE v. THE STATE (1988) 3 NWLR (Pt.85) 729 at 753; ADIGUN v. ATTORNEY-GENERAL, OYO STATE (1987) 1 NWLR (Pt.53) 678; SALU v. EGEIBON (1994) 6 NWLR (Pt.348) 23 at 44; BAMGBOYE v. UNIVERSITY OF ILORIN (1999) 10 NWLR (Pt.622) 290 at 333. When there had been a denial of fair hearing, miscarriage of justice is presumed to have been occasioned to the party denied fair hearing. The Lower Court denied the Appellants, particularly the 1st & 6th Appellants’ fair hearing. They thereby
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suffered miscarriage of justice.
This issue is resolved in favour of the Appellants. I will allow the appeal on this issue alone without going further to consider the remaining issues, the Judgment of the Lower Court appealed being null and void. I hereby allow the appeal. The decision and orders contained therein delivered on 10th February, 2005 in the appeal No.CA/J/79/2004 are hereby set aside. The appeal No.CA/J/79/2004 is hereby remitted to the Court of Appeal, Jos to be heard de novo. Parties shall bear their respective costs.
SC.106/2005
