Victino Fixed Odds Limited V Joseph Ojo & 2 Ors (2010)
LAWGLOBAL HUB Lead Judgment Report
A. FABIYI, JSC
This is an appeal against the decision of the Court of Appeal, Benin Division delivered on 12th April, 2000 which upheld the appeal of the respondent herein.
The 3rd respondent which was set up in accordance with the provisions of the Pools Betting (Control and Taxation) Edict of Edo State, 1986 unanimously gave judgment in favour of the 1st respondent. It ordered the appellant herein to pay the 1st respondent the sum of N116,200.00. After the decision of the Arbitration Panel, the appellant, through its counsel appears to have agreed to pay the stated sum vide a document headed ‘RECEIPT’ dated 13/8/97 as contained on page 43 of the record of appeal.
The appellant later refused to comply with the decision of the 3rd respondent. Instead, it filed an application at the High Court of Justice, Benin City to seek an order of certiorari to quash the ruling of the 3rd respondent. The trial judge heard the application and in his judgment handed out on 12/3/98, he held ‘that there exists on the face of the record said to be quashed serious error of law’. He thereafter quashed the decision of the 3rd respondent which was delivered on 7/8/97; having found that the 3rd respondent which was delivered on 7/8/97; having found that the 3rd respondent was not properly constituted according to law. This issue was not raised by the parties, but by the trial judge suo motu. As well, he was not addressed by the learned counsel for the respondent on the salient point.
The respondent felt unhappy with the stance posed by the trial judge and appealed to the Court of Appeal (court below) for short. The court below, without any form of difficulty, upheld the respondents’ appeal. The appellant has appealed to this court to try its chance; at it were.
On 17th December, 2009 when the appeal was heard, learned counsel for the appellant adopted and relied on the appellant’s amended brief of argument which was filed on 22nd November, 2007 and the Reply to the 1st respondent’s Notice of Preliminary Objection filed on 20th May, 2008.
I note that on page 3 of the stated appellant’s brief of argument, it is indicated that it (the appellant) shall, at the hearing of the appeal, seek the leave of this court to file and argue an additional of ground appeal to with: ground 5. Nothing was urged in this respect when the appeal was heard. And like a child’s play, the appellant’s counsel formulated what he called issue (iii) without any leave granted by this court. With due regard to the learned counsel, the improper steps taken were to no avail. Issue (iii) is accordingly discountenanced.
On behalf on the 1st respondent, learned counsel adopted and relied on the brief or argument filed on 25th March, 2008 and urged that the appeal be dismissed. As well, learned counsel for the 2nd and 3rd respondents adopted their joint brief of argument filed on 6th October, 2006 and also urged that the appeal be dismissed.
The 1st respondent raised objected to ground 2 of the grounds of appeal. He contended that it does not arise from the judgment of the court below. He felt that the ground is incompetent and should be struck out. He placed reliance on the decisions in Egbe v. Alhaji (1990) 1 NWLR (Pt.128) 546 at 590 and Owie v. Ighiwi (2005) 5 NWLR (Pt.917) 184 at 217.
Learned counsel for the appellant felt that the said ground 2 of grounds of appeal arose from the decision of the court below in that it summarily said that the composition and designation of the 3rd respondent which the trial court raised suo motu without hearing the parties and decided the case on it was wrong for he went on a voyage of discovery in the area where the parties have not joined issue.
It is trite that a ground of appeal against a decision must relate to and challenge the validity of the ratio of the decision. No valid issue can be formulated from an invalid ground of appeal which does not relate to the judgment being challenged. See Owie v. Ighiwi (supra).
The decision of the court below, put briefly, is that it was wrong for the trial judge to make a case on his own different from that made by the parties and proceed to resolve same without affording the parties opportunity to address him on the point raised suo motu by him. The court below found that no issue was joined on the composition of the 3rd respondent at the trial court. The appellant is trying to surreptitiously force it in before this court. What a comedy of errors on the part of the appellant Ground 2 of the grounds of appeal is hereby struck out. As well, issue 1 distilled therefrom is discountenanced.
Issue (ii) couched on page 4 of the appellant’s brief of argument is partly relevant. It reads as follows:-
(ii) Were the learned justices of the Court of Appeal right in affirming the findings and ruling of the Arbitration Panel solely on the issue suo motu by the learned trial judge of the High Court when there was another ground why the High Court set aside the said ruling and findings of the Arbitration Penal and thus granted application for certiorari.”
On behalf of the 1st respondent, the only issue distilled for determination of the appeal is:-
“Whether court of appeal was right in setting aside the decision of the High Court because the High Court made out a case on its own different from the one made by the parties.”
On behalf of the 1st and 2nd respondents, two issues were decoded for determination. They read as follows:-
“1. Whether the learned justices of the Court of Appeal were right when they held that the composition and designation of the Arbitration Panel which is the major pillar upon which the trial judge set aside the decision of the Arbitration Panel was an issue of fact in which the parties did not join issue and thereby wrong for the learned trial judge to make out a case outside the issue before him.
- Whether the learned justices of the court of appeal were right in setting aside the judgment of the learned trial judge and affirming the decision of the Arbitration Panel.”
The relevant submission made by the learned counsel for the appellant in respect of issue (ii) which was partly saved is that there was no miscarriage of justice although the issue of the composition and designation of the Arbitration Panel was raised by the learned trial judge suo motu without hearing the parties. Learned counsel felt that the issue of composition and designation of the Arbitration Panelists is an issue of law which the trial judge could consider. He cited Finnih v. Imade (1992) 1 NWLR (pt.219) 511 at 518 – 519; Adesanya v. Otuewu (1993) 1 NWLR (Pt.270) 413 at 425.
Learned counsel strenuously tried to bring to the fore the fact that the transaction is binding in honour only. He variously referred to the transaction as ‘a gentlemen’s agreement’ in which none of the parties is strictly bound.
In respect of the issue formulated on behalf of the 1st respondent, learned counsel submitted that by virtue of section 233 of the 1999 constitution, this court is empowered to entertain appeal only from a decision of the Court of Appeal and not from a decision of the High Court. He referred to Attorney-General, Anambra State v. Attorney – General of the Federation (2005) 9 NWLR 572 AT 608, 612.
Learned counsel observed that the court below set aside the decision of the High Court principally on the fact that the composition and designation of the Arbitration Panel was raised by the trial judge suo motu and without hearing the parties. He submitted that there was a breach of fair hearing guaranteed by section 36 of the 1999 Constitution. He cited the cases of State v. Onagoruwa (1992) 2 NWLR (Pt.221) 33 at 56, Tukur v. Government of Gongola State (1989) 9 SCNJ 1, Adigun & Ors. v. A. G. Oyo State & Ors. (1987) 2 NWLR (Pt.58) and Deduwa v. Okorodudu 91976) 9-10 SC, 329.
Learned counsel observed that once it was established that there was breach of fundamental right to fair hearing, the entire decision is a nullity regardless of the correctness of the decision whether on point of law or fact. Learned counsel further submitted that arguments ‘smuggled’ into the appeal in respect of ‘contract binding in honour’ goes to no issue as same was not cross-appeal thereat. He further stressed that the issue of contract ‘binding in honour only’ was never canvassed before the Arbitration Panel and that the appellant should not be allowed to blow hot and could. He cited Mbadinuju v. Ezuka (1994) 22 LRCN 8; Ude v. Nwara (1993) 2 NWLR (Pt.278) 638 AT 649. He urged that the issue be resolved against the appellant.
On behalf of the 2nd and 3rd respondents, learned counsel submitted that the trial judge went on a voyage of discovery outside the issues joined by the parties to make a case for the appellant. He contended that such wrong. He cited the cases of Olorunfemi v. Asho (1991) 1 NWLR (Pt.585) 1; Salubi v. Nwariaku (1997) 5 NWLR (pt.505) 442 at 476; Balsale v. Abdukadir (1993) 11 LRCN 396 at 381.
Learned counsel stressed the point that the justices of the court below were right in setting aside the decision of the trial judge. He cited Kuti v. Balogun (1978) 1 All NLR (Pt.1) 170; Adegoke v. Adibi (1992) 5 NWLR (Pt.242) 410 at 420, Odiase v. Agho (1972) 1 All NLR 170.
Learned counsel urged that the issues formulated on behalf of the 2nd and 3rd respondents be resolved against the appellant and in their favour.
Let met say it right away that the right to fair hearing is a cardinal principle that is provided in section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria. It provides as follows:-
“36 (1) In the determination of the civil rights and obligations including any question or determination by or against any government or authority, a person shall 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.”
It is certain that fair hearing by a court or other judicial tribunal under section 36(1) of the 1999 Constitution – the grundnorm, incorporates the audi alteram partem rule. It is that a man can never have a verdict entered against him on a matter relating to his civil rights or obligation before such a court or tribunal without being given an opportunity of being heard. The rule is one of the essential cornerstones or our judicial process. See: Amadi v. Thomas Aplin Co. Ltd. (1972) SC 228; Kano N. A. v. Obiora (1959) SCNLR 577.
In its real essence, fair hearing lies in the procedure followed in the determination of the case, not in the correctness of the decision. It is only when the party aggrieved has been heard that the trial judge would be seen as discharging the duty of an unbiased umpire. Learned counsel for the appellant feels that his surmised absence of miscarriage of justice ameliorates an infringement of a provision of fundamental human right. Such is not correct. The violation of the rule of audi alteram partem, per se, lies in the breach of the fundamental human right.
Once right is violated, it is irrelevant whether a decision made subsequent thereto is correct. See: Tukur v. Government of Gongola State (1989) 9 SCNJ 1; (1989) 4 NWLR (pt.117) 517.
It should be further stated that on a breach of the right of fair hearing, an appellant court does not go to the reasons for its breach or the consequences of same. It has no alternative but allow the appeal against the decision and treat it as though there has been no hearing at all. An appellate court is bound to follow this course in the hearing of the appeal. see: Adigun & Ors. v. A.G. of Oyo State & Ors. (1987) 2 NWLR (Pt.56) 197.
A denial of the right to be heard is a breach of constitutional right, natural justice and rules of court. Such cannot and ought not be condoned in any respect. See Otapo v. Summonu (1987) 2 NWLR (Pt.58) 587.
It is a basic and fundamental principle of the administration of justice that no decision can be regarded as a valid unless the trial judge or court has heard both sides in the conflict. See: Deduwa v. Okorodudu (1976) 9 – 10 S.C. 329.
It is agreed that the trial judge, suo motu, raised the issue of the composition and designation of the Arbitration Panel and without hearing the parties, determined the case against the respondents. This much was conceded by the appellant at page 10 lines 15 – 19 of its brief of argument. This being the case the court below was right in setting aside the decision of the trial court on that score alone. The right to hearing was not afforded the respondents. Same has been established. This court will not explore the reason for its breach or its consequence. All the glib talks touching on ‘contract binding in honour’ and ‘gentlemen’s agreement’ unnecessarily imported into this appeal were to no avail in the prevailing circumstance.
There is no doubt about it that the trial judge descended into the arena when he suo motu, in his judgment, raised the issue of the composition of the Arbitration Penal and designation of its members and resolved them in favour of the appellant without affording the respondents’ counsel the opportunity to address him on the point. The trial judge had no duty to bridge the yawning gap in the case of a party to the proceedings. See: Ajuwon v. Akanni (1993) 9 NWLR (Pt.316) 182; Salubi v. Nwariaku (1997) 5 NWLR (Pt.505) 422.
Even then, it is manifest from the record that the issue taken suo motu by the trial judge was not part of the grounds upon which the order for certiorari was sought to quash the decision of the Arbitration Panel. There was therefore a fundamental misdirection by the trial judge who made out a case in favour of the appellant without hearing the respondents on the issue. It was not his business to do so. See: Olorunfemi v. Asho & 2 Ors. (1999) 1 NWLR 1 at 9.
It is trite that a court should not set up for the parties, a case which is different from the one set up by the parties themselves in their pleadings and/or their evidence. see: Oniah v. Onyiah (1989) 1 NWLR (Pt.99) 514; Ojo-Osagie v. Adonri (1994) 6 NWLR (Pt.349) 131.
It is certain to me that the trial judge crossed the line in jumping into the arena by raking up the vital point discussed above suo motu without hearing the respondents. The court below was perfectly right in setting aside the null decision of the trial court. I resolve the issue against the appellant and in favour of the respondents.
In short, the appeal is devoid of merit. It is hereby dismissed. The judgment of the court below is hereby affirmed. The appellant shall pay N50,00.00 costs to each set of respondents(s).
SC.94/2001
