➥ CASE SUMMARY OF:
Tony Anthony Nig. Ltd & Ors. v. NDIC (CA/L/630/2009 • 25 January 2011)
by Branham Chima.
➥ SUBJECT MATTER
➥ CASE FACT/HISTORY
The claimants, now appellants in this appeal had instituted a case at the Federal High Court, sitting in Lagos in suit No. FHC/L/CS/618/07 wherein they claimed, per their writ of summons dated 4 July 2007 as follows inter alia: ‘(a) A declaration that the non-service of the originating processes in suit No. FBT/KNZ/CV/230/98 – Nigeria Deposit Insurance Corporation v. 1. Tony Anthony Nigeria Limited 2. Chief Tony Maria Opia and 3. Nnamdi Oyeka At the Failed Bank’s Tribunal, Kano Zone on the plaintiffs as required by law is in breach of the plaintiffs’ constitutional right to fair hearing as guaranteed under section 33(1) of the Constitution of the Federal Republic of Nigeria, 1979 as amended being the law in force at the relevant date.’
The plaintiffs now, appellants filed their statement of claim on 4 July 2007 on same date when the writ of summons was taken out. The respondent on his part entered appearance out of time and filed a proposed statement of defence and a motion on notice on 8 July 2008 at the Federal High Court for; “(1) An order striking out this suit because the honourable court lacks jurisdiction and same is an abuse of court processes. (2) And for such further or other orders as this honourable court may deem fit to make in the circumstances.”
The Claimant/respondent filed a counter-affidavit but the case was on 15 October 2008 however adjourned for hearing against 27 October 2008. On the said 27 October 2008, the learned trial Judge however dismissed the plaintiffs’/appellants’ case on the ground that it had no jurisdiction to set aside the judgment of a failed bank’s tribunal and that the plaintiffs/appellants’ absence in court meant that he had no defence to the motion of the defendant/respondent; and also that he was the party that dragged the defendant/respondent to court and ought not have been absent from court at the hearing as his absence from court was seen as want of desire to prosecute the claim and the lack of defence to the issues raised in the defendant’s motion. Dissatisfied with the said ruling, the appellants filed a notice of appeal on 5 January 2009 and upon five grounds of appeal
➥ ISSUE(S) & RESOLUTION(S)
I. Whether from the facts and circumstances of this case, the learned trial Judge was right in holding that he had no jurisdiction to entertain the appellants’ case?
RESOLUTION: IN APPELLANT’S FAVOUR. (The learned trial judge was not right in holding it has no jurisdiction).
[THE JUDGE MISAPPREHENDED THE CASE OF THE APPELLANT; THE APPELLANT SOUGHT TO ENFORCE HIS FUNDAMENTAL RIGHT SIMPLICITER
‘From pages 4 – 7 of the record of appeal, the appellants’ statement of claim taken out by A.C. Igboekwe Esq. of Andy Igboekwe and Co., plaintiff’s solicitor, on 29 June 2007 essentially complains of the breach of right to fair hearing in that it alleges non-service of both the originating processes and hearing notice on the appellants. Secondly, by the non-service, the breach of appellants’ constitutional right is challenged to have been committed and the jurisdiction of the tribunal questioned. A declaration that the judgment is null, void and of no effect whatsoever is sought. Most instructively, appellants want their constitutionally guaranteed fundamental right to fair hearing be protected and enforced by an order of the trial Federal High Court directing that the suit at the failed banks tribunal in suit No. FBT/KNZ/CV/230 be heard and determined on its merit before a Judge of the Federal High Court. I dare say and it is my view that by these claims and particularly the prayer for hearing and determination of the suit by a Federal High Court on its merit, the plaintiffs/appellants were seeking for the enforcement of their fundamental human right of fair hearing as enshrined in section 33(1) of the Constitution of the Federal Republic of Nigeria, 1999. It was not the case of the appellants at the trial that the judgment of the tribunal was wrong on its merit per se. Neither was it their case that the tribunal could not try the case against them. No! it was also not their case that a properly conducted case would not enjoy finality when and if it had been determined by the special appeals tribunal. As the constitutional right of a litigant or an aggrieved person to approach a High Court (as appropriate) for the enforcement of the threatened, imminent or actual breach of his fundamental rights subsists See section 46(1) of the Constitution of the Federal Republic of Nigeria, 1999 and the case of Brigadier General Fred Bini Chijuka (TRD) and 9 Ors. v. Maduewesi, CA/L/567/06 delivered by this court on 10 November 2010. Total (Nig.) Plc v. V.I.I.R.A. (2004) 7 NWLR (Pt. 873) 446. The appellants’ claims were clearly with respect, misapprehended when the trial Judge elevated or converted the claim before it to the realm of a challenge to the “substantive” jurisdiction of the failed banks tribunal. That was not the complaint! To have so misunderstood the claim, I agree with appellants’ counsel that the court was in error and thus made a postulation of its own and determined it on that basis. Infact, that is akin to not only descending into the arena of trial, but acting the father christmas which is not the function of a court of law: Afrotec Technical Services (Nig.) Ltd v. MIA and Sons Ltd (2000) 15 NWLR (Pt. 692) 730, (2001 ) FWLR (Pt. 35) 643; Ekpeyong v. Nyong (1975) 2 SC 71, 80. See also the judgment of this court in Alhaji Ganiyu Kuti v. Miss Idiyat Oluwa delivered on 15 December 2010 wherein in my lead judgment I stated at page 12 of the judgment thus: “It should be stated that a court is not a Father Christmas out to dish out reliefs not asked for nor proved …” I had also stated on the same page of the report thus: “To complain in the manner done on appeal now is to ask that a trial court or indeed an appellate court should make a case for a party different from that made out or pleaded in the claim or defence. To do that will be perverse and would not be borne out of the evidence led at the trial: S.G.D.S. v. Rastico (Nig.) Ltd (1992) 6 NWLR (Pt. 245) 93, … (1975 ) 2 SC 71 at 82.”’
APPELLANT WAS NOT CHALLENGING THE SUBSTANTIVE CASE OF THE TRIBUNAL, BUT STATING THAT HE WAS DENIED A FAIR HEARING
‘It should be noted that the challenge by the appellants was not against a decision of the special appeal tribunal nor against the decision of the failed banks tribunal on the merit of the substantive case. The case of the appellants is that there was no trial at all as they were not served. It is trite that an order of substituted service cannot be made on a juristic personam like the 1st appellant company herein without effort at service as required by law first made. Service at the registered business or head office is what is required by the Federal High Court (Civil Procedure) Rules and the Companies and Allied Matters Act, 2004. Also the case of Mark v. Eke (2004) All FWLR (Pt. 200) 1455, (2004) 5 NWLR (Pt. 865) 54. In this case, service as effected by substituted means by pasting at Asaba as against the registered office address as averred and supported by pages 8 – 9 of the record of proceedings which shows the notice of situation of registered office of Tony Anthony (Nig.) Ltd, to be No. 8, Oginigba Road, West Africa Glass Industry, Trans Amadi Industrial Layout, P.O. Box 3877, Port Harcourt is wrongful, null and void and amounts to no service. Appellants’counsel is on the right thicket when he so contended in issue No. 1 that his client’s case was misunderstood at the trial.’
THE LOWER COURT HAD JURISDICTION
‘I am agreeable with the appellants that the tribunal had no jurisdiction to have proceeded with the case in the first instance and the right of fair hearing guaranteed parties in all proceedings before a court of law or tribunal established by law or under or pursuant to the Constitution was also breached. By section 35 and 36 of the 1979, now Constitution of the Federal Republic of Nigeria, 1999, those rights are guaranteed. Appellants as plaintiffs by paragraphs 22, 23 of their statement of claim claim a violation of those rights and seek a declaration by paragraph 27 thereof. I am satisfied that on the authority of the case of the Federal Republic of Nigeria v. Ifegwu (2003) FWLR (Pt. 167) 703, (2003) 15 NWLR (Pt. 842) 113 cited by appellants’ counsel, the trial High Court had jurisdiction to hear and determine the case and on its merit.’]
II. Whether from the facts and circumstances of this case, the learned trial Judge denied the appellants their right of fair hearing?
RESOLUTION: IN APPELLANT’S FAVOUR. (The learned trial judge ought not to deny the Appellant fair hearing due to absence of their Counsel).
[THE APPELLANT SHOULD HAVE BEEN HEARD EVEN IF THE ADJOURNMENT WILL NOT BE GRANTED FOR COUNSEL
‘In the instant case, the appellants were not heard in reply because their counsel had sought for an adjournment, which was disregarded. The reason was based on the absence of their counsel which was thought by the court to be unjustified and based on the assumption that no defence was available in reply. From the printed record, it is clear that their counsel had applied for an adjournment and to the notice of the respondent who had a copy of the letter sent in advance to him. This much was admitted. It should be noted that it was A. C. Igboekwe that settled the statement of claim of the plaintiffs/appellants at the trial court. For an application for an adjournment on the ground that such a counsel should be granted an indulgence of an adjournment to address the court to be refused lightly would appear to be hasty and not in the interest of fair hearing. A counsel who settles a process in a court is also a counsel in the matter and it cannot be right as held at the trial that Igboekwe Esq. was not a counsel or had not appeared for the appellants. The said Igboekwe Esq. had been specifically mentioned in the application for adjournment as the senior in chambers who will handle the reply to the application that was moved. It is my view that the dismissal of the suit was precipitate and unjust as it amounted to a denial of fair hearing to the appellants who were visited by what the Judge considered in my view as the sins of their counsel. The objection raised to the jurisdiction of the tribunal and the invitation on the trial court’s jurisdiction was for the benefit of the appellants and when an application for an adjournment, for good reason, or not was made and even if were to be refused, I think the interest of justice demanded that the party himself be ordered to represent himself or gets a substitute counsel to avoid the perceived irritation or ills of a counsel already appearing. This is more so, in a case where the claimants’ case has not been heard; and they have evinced sufficient desire to be so heard.’
THE COURT OUGHT TO HAVE ADJOURNED THE CASE
‘Although adjournments are not granted as a matter of cause, it is granted judicially and judiciously and in the interest of justice. The interest of justice demanded that the court and the respondent having been put on notice for an adjournment and also the statement of claim, illucidating the writ of summons complaining of no trial in accordance with law at the tribunal, as it were, in that non-service had been alleged, the court ought to have adjourned the case to enable the argument in reply be taken as this will ensure that the defendant/respondent did not take through the backdoor a victory that was Pyrrhic and one which an observer of the proceedings cannot say the court has been fair to all the parties. Has the other side been heard? The rule of audi alteram partem i.e. “hear the other side” has not been complied with.’
THE COURT SPECULATED AND THUS DISMISSED THE CASE WRONGLY
‘To further buttress my view that the trial Judge did not afford the appellants fair hearing is the fact that in his judgment, the court embarked upon a conjecture and speculation in that he considered the absence of the appellants/plaintiffs’ counsel even though there was an application for adjournment as indication or proof that they had no defence to the objection raised. If the appellants’ counsel had “kept away” without an application, the insinuation might possibly have had a basis. However, here there was an application with reasons stated and a period suggested for the exercise of the court’s discretion in fixing the date of adjournment. I think most respectfully that the worst the trial court could do if he considered the suggestion as to date unreasonable would have been an adjournment to a date convenient to it or adjourn with an order on the appellants as plaintiffs then, to appear personally to handle their matter or obtain a substitute counsel. The failure of the trial court in doing just that, but choosing rather to hastily close or slam the door against the appellants herein, is to my mind the effect of the speculation or assumption that appeared to have enveloped the court’s mind.’
‘I am fortified by the decision above in holding the view and coming to the conclusion that the learned trial Judge merely speculated or assumed at his judgment in dismissing the appellants’ case after wrongly refusing to adjourn same on the assumption that the “unheard” reply from the appellants’ counsel was not going to be a valid defence to the objection raised and more and equally dangerously speculative was the assumption that the plaintiffs/appellants’ suit before it was unmeritorious and therefore there was no need for a hearing to be conducted therein on its merit. The refusal to adjourn the case following the circumstances analysed supra and the refusal to determine the plaintiffs/appellants’ claims, is to my mind a fundamental breach of the fundamental right to fair hearing that has vitiated the entire proceedings, however well conducted: Salu v. Egeibon (1994) 188 LRCN 241; Ceekay Traders Ltd v. General Motors Co. Ltd (1992) 2 NWLR (Pt. 222) 132.’]
‘I therefore set aside the judgment of the lower court refusing the application for adjournment and dismissing the plaintiffs/appellants’ case at the trial and in its place I order that the suit No. FHC/L/CS/618/2007 be restored to the cause list of the Federal High Court Lagos and to be heard by a different Judge of the court to be assigned by the Chief Judge of the Federal High Court.’
➥ FURTHER DICTA:
⦿ IT IS FROM THE WRIT AND STATEMENT OF CLAIM THAT THE CLAIMANT’S CASE IS KNOWN
The cause of action is donated by the writ of summons and statement of claim and it is in those originating processes and any such similar process that a court of law will decipher what the complaint of a litigant before it is. See the decision of this court in Nduka v. Ogbonna (2011) 1 NWLR (Pt. 1227) 153 at 175, paragraphs B – C, Ariwoola JCA succinctly stated the position thus: “In the instant case, the cause of action as clearly shown on the statement of claim is for special and general damages for defamation and malicious prosecution.” The apex court has also reaffirmed this position of the law which has become trite: Hassan v. Aliyu (2010) All FWLR (Pt. 539) 1007, (2010) 17 NWLR (Pt. 1223) 547, wherein Adekeye JSC had this to say at 619, paragraphs G – 4 of the report: “… It is sufficient if prima facie the date of taking the cause of action is disclosed in the writ of summons and statement of claim … The trial court has a duty to confine itself to the pleadings filed by the parties.” — Danjuma, JCA.
⦿ PARTY NOT SERVED ORIGINATING PROCESS CAN SET ASIDE CONCLUDED TRIAL
I need only say that this argument is, with respect, simplistic as the finality of a decision can only be predicated upon the decision on its merit and not where there has been no valid and competent trial, so to say. It is my view that where a party is not validly served the originating processes as is the case with appellants herein – a registered company, there cannot be said to have been a trial or hearing involving it. Such purported trial cannot in my view give birth to a final decision that is capable of stripping the lower court imbued with not only general powers, but special right of enforcing such breaches – of such rights. It is trite that where a party is not served an originating process the entire proceedings as against him is a nullity. He is entitled to have it set aside. — Danjuma, JCA.
⦿ JUDGE SHOULD NOT MAKE PRONOUNCEMENTS ON THE CASE AFTER STRIKING OUT FOR WANT OF JURISDICTION
It is my judgment that the Judge was wrong in dismissing the suit rather than striking it out when he held that he had no jurisdiction. The court was not just wrong, I dare say that the court abdicated a constitutional obligation or duty. In any case, the law is that even where a court finds that it had no jurisdiction he has no business making any other order or proceeding further other than to do his only duty, which is to strike out the matter or case: Obi v. I.N.E.C. (2007) All FWLR (Pt. 378) 1116, (2007) 11 NWLR (Pt. 1046) 565. Also the case of John Egbele v. The Post Master General (unreported decision of this court in CA/L/585/05 delivered on 10 November 2010) wherein this court, per Mukhtar JCA in his lead judgment said at page 10 thus: “The court below having rightly held that it lacked jurisdiction in the matter, ought to have simply struck out the matter as it lacked the competence to decide any other issue. The further pronouncement by the court that the suit was statute-barred was null and void and same is hereby struck out” In Okotie-Eboh v. Manager (2005) 123 LRCN 256, (2005) All FWLR (Pt. 241) 277, the Supreme Court also made it clear, per Edozie JSC at page 288, paragraph K of the report that the superfluous pronouncement made after a finding that the court had no jurisdiction was academic as courts of law are not academic institutions. I must say that it is for this same reason that I had in the decision of this court in Egbele v. The Post Master General said in my contribution as follows: “it is in the same reasoning that I hold that challenge raised in ground No. 2 of the appeal – bordering as it were on the limitation of action, has no merit as the High Court of a State including that of Lagos State has no jurisdiction to proceed to pronounce on the incompetence of the suit for being statute-barred after it had found … That it lacked jurisdiction to adjudicate the matter.” — Danjuma, JCA.
⦿ CONSEQUENCE OF DISMISSING A SUIT AS AGAINST STRIKING IT OUT
The prejudicial effect of an order dismissing the suit is enormous as it forecloses albeit, wrongly, the right of relitigation, if not set aside and also dangerously brings the court into the arena of conflict: Ekpeyong v. Nyong (1975) 2 SC 71. — Danjuma, JCA.
⦿ A COURT IS BOUND TO RESOLVE ALL APPLICATIONS BEFORE IT
It is trite that when a matter is before a court, that court is bound to hear and determine all applications or issues brought or raised before it by litigants: Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511; Brawal Shipping (Nig.) Ltd v. Onwadike Co. Ltd (2000) FWLR (Pt. 23) 1254, (2000) 79 LRCN 2348 SC. — Danjuma, JCA.
⦿ A COUNSEL WHO SETTLES A PROCESS IS ALSO A COUNSEL IN THE MATTER
A counsel who settles a process in a court is also a counsel in the matter and it cannot be right as held at the trial that Igboekwe Esq. was not a counsel or had not appeared for the appellants. The said Igboekwe Esq. had been specifically mentioned in the application for adjournment as the senior in chambers who will handle the reply to the application that was moved. — Danjuma, JCA.
⦿ FAIR HEARING LIES IN THE PROCEDURE USED NOT THE DECISION ITSELF
The apex court had stated the position of the law succinctly thus:- “Fair hearing lies in the procedure followed in the determination of the case and not in the correctness of the decision. It is synonymous with trial and implies that every reasonable and fair-minded observer who watches the proceedings should be able to come to the conclusion that the court has been fair to all the parties”. (Italics mine, for emphasis) Magna Maritime Services Ltd v. Oteju (2005) All FWLR (Pt. 270) 1995, (2005) LRCN Vol. 128 1497 at page 152; per Edozie JSC Kotoye v. C.B.N. (1989) 1 NWLR (Pt. 98) 419 at 444; State v. Onagoruwa (1992) 7 LRCN 194. — Danjuma, JCA.
Tony Anthony Nig. Ltd & Ors.
Nigerian Deposit Insurance Corporation
➥ LEAD JUDGEMENT DELIVERED BY:
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)