IN THE SUPREME COURT OF NIGERIA
SUIT NO: SC337/2008
GENERAL ELECTRIC COMPANY
HARRY AYOADE AKANDE, LAWRENCE ADEMOLA OKUNOLA,
NEW AFRICA DEVELOPMENT COMPANY LIMITED,
NEW AFRICA TECHNICAL & ELECTRICAL COMPANY LTD,
POWER HOLDING COMPANY OF NIGERIA PLC
DATE DELIVERED: 2012-03-23
MAHMUD MOHAMMED, MITCHELL CHRISTOPHER CHUKWUMA-ENEH,
MUHAMMAD SAIFULLAH MUNTAKA-COOMASSIE,
JOHN AFOLABI FABIYI, BODE RHODES-VIVOUR
The Appellant herein, General Electric Company Limited, is the 4th defendant in suit No FHC/L/22/90 at the Federal High Court sitting in Ikoyi, Lagos, and has appealed against the judgment of the Court of Appeal delivered on 6th October, 2008. Four other defendants 1st, 2nd, 3rd and 5th did not appeal. The crucial and amazing aspect of this appeal is that the main appeal was pending and without hearing, the Court of Appeal decided abruptly to dismiss the appellant’s appeal without hearing notwithstanding that the parties had filed their respective briefs of argument.
The same court, now lower court, struck out, also without hearing, the appellant’s Motion on Notice for leave to amend its Notice of Appeal, Appellants Brief of Argument and Reply Brief.
The 1st Respondent and one other were shareholders and directors in the 4th defendant/respondent company. Both had informed the 4th defendant that they were not happy with the way affairs of the 4th defendant’s company were being run. As a result of the said internal wrangling, Harry Ayoade Akande instituted Suit No FHC/22/90 in 1990 against the 2nd to 5th respondents, the Appellant inclusive. The amended statement of claim is as contained on pages 223 – 235.
On the 6th October, 2008, the motion to amend the appellant’s Notice of Appeal was fixed for hearing. What is to be noted here is that the substantive appeal was not fixed for hearing on the said 6/10/2008. The presiding justice of the Court of Appeal suddenly proceeded to dismiss the appeal without hearing either the motion or the substantive appeal.
His lordship had this to say:
“ In the circumstances we agree with the 5th respondents counsel that this is an appropriate case for this court to invoke the Provisions of Or der 6 Rule 6 of the rules of this court. Consequently in our final consideration of the application for adjournment it should be refused. Since the motion dated 25/9/08 is incompetent in terms of the ambiguity contained in its prayers it cannot be adjourned but instead, it is hereby struck out. The appeal itself even though it is not for hearing today can however be treated in terms with Order 6 Rule 6 of the court of Appeal rules 2007 (supra) it is accordingly hereby dismissed. Costs of N30,000.00 is awarded to each of the 1st and 5th respondents.’
Not satisfied with the above decision of the court below the Appellant again further appealed to the Supreme Court. The appeal was heard on appellant’s brief alone as ordered by this court when all the respondents failed to file their respondents brief of argument.
Argument on Issue No 1 is quite clear. I cannot imagine that a court of law can lawfully decide a matter before it without hearing. It is a fact that cannot be altered that the appeal before the lower court on that 6/10/2008 was not fixed for hearing. It was only the motion on notice that was fixed for hearing but the learned justice could not even exercise patience to hear the motion. There was no reason whatsoever for dismissing the main and substantive appeal before it.
This is palpably wrong to say the least.
It is totally wrong for all courts below to take an appeal which has not been fixed for hea ring on a particular date. The court cannot hear an appeal on a date fixed for hearing of a motion without the consent of both parties and the court.
The court must have read the provisions of Order 6 Rule 6 of the Court of Appeal rules upside down when without hearing at all, it dismissed the main appeal on a date fixed for the hearing of the motion without giving audience to both counsel in the matter. This is very sad indeed.
There was no respondents brief in this appeal, I was shocked to discover that none of the counsel, including the learned senior counsel, was bold enough to say that the procedure adopted by both the Chief Judge of the Federal High Court and the learned Justice of the Court of Appeal Lagos were wrong and un-acceptable. The preliminary objection filed by the 4th respondent on 27/10/2009 to this appeal is noted. I have gone through the preliminary objection and hold that all the grounds for the objection are misplaced and untenable, same deserved to be dismissed. I therefore hold that the preliminary objection has failed and same is dismissed by me.
In conclusion the appeal succeeds and same is hereby allowed. The appeal shall be reverted back to the Court of Appeal Lagos Division for hearing of the appeal by a different panel which was not involved in the hearing of the appeal.
N50,000.00 costs to the appellants herein Judgment delivered by Mahmud Mohammed. JSC
This appeal was heard on the Appellant’s brief of argument alone as all the Respondents had failed to file their respective Respondents briefs of argument. From the record of appeal, the sitting of the Court of Appeal Lagos on 6th October, 2008, was to hear a motion by the Appellant/Applicant to amend the Notice of Appeal. The motion was filed on 26th September, 2008 but dated 25th September, 2008. In the course of the hearing, the Appellant/Applicant applied for a short adjournment asking for another date for the hearing of that motion after withdrawing 2 other motions which were struck out that day. The record shows there was proof of service on 2nd and 7th Respondents. Appellants appeal was not fixed for hearing that day but briefs have been filed.
The record also shows quite clearly that in Ruling on the application for adjournment, the Court of Appeal not only refused the application for adjournment of motion dated 25th September, 2008 but proceeded not only to strike out the motion for being incompetent but also proceeded to dismiss the substantive appeal which was not fixed for hearing on that day, 6th October, 2008, purportedly under Order 6 Rule 6 of the Court of Appeal Rules 2007.
…In the circumstances we agree with the 5th respondents counsel that this is an appropriate case for this court to invoke the provisions of Order 6 Rule 6 of the Rules of this court. Consequently in our final consideration of the application for adjournment it should be refused. Since the motion dated 25/9/08 is incompetent in terms of the ambiguity contained in its prayers it cannot be adjourned but instead, it is hereby struck out.”
And, on the appeal, His Lordship said
“. The appeal itself even though it is not for hearing today can however be treated in terms with Order 6 Rule 6 of the Court of Appeal Rules 2007. It is accordingly hereby dismissed costs of N30,000.00 is awarded to each of the 1st and 5th respondents.”The right to fair hearing entrenched in Section 36 of the Constitution entails not only hearing a party on an issue which may or may not be resolved in his favour, but also ensuring that the hearing is fair and in accordance with the twin pillars of justice to wit: audi alteram partem and nemo judex in causa sua. See Adigun v. A. G. Oyo State (1987) 1 NWLR (Part 53) page 678.
Audi atleram partem means ‘please hear the other side’. This is a maxim denoting fairness and a canon of natural justice. A judge at all times should allow both parties to be heard and should listen of the case of each. Nemo judex in causa sua means that no judge should preside over a matter in which he has a personal interest or involvement. In this appeal it is the former that is relevant.
On the 6th day of October, 2008, the appellant was present in court and announced his appearance in court. Without hearing the appellants counsel, the Court of Appeal struck out his Motion on Notice and proceeded to dismiss the appeal. This clearly violates the clear mandatory constitutional right of fair hearing provided by Section 36 of the Constitution.
A judge must hear all applications, no matter how simple or frivolous they may appear, and it is only after counsel is afforded a hearing that an order striking out the motion can be said to be appropriate. An order of dismissal signifies that the court had entertained the matter on the merits. In the Court of Appeal the appellant was not allowed to move his Motion of Notice on the day fixed by the court for the hearing of the motion. Furthermore, the appeal was dismissed, without a hearing, on a day that the appeal was not fixed for hearing. The learned judge made orders without allowing either side to be heard. Consequently the orders striking out the motion and dismissing the appeal were made in clear
denial of the parties right to fair hearing given by Section 36 of the Constitution and fell far short of the maxim audialteram partem. The entire proceedings are a nullity.
One asks himself if it is justice to the parties that the appeal was dismissed without either of them being heard. I think not. The justice of this case lies in the appeal being heard so that parties would be satisfied that they have enjoyed their Constitutional rights of appeal to the fullest.
For this and the much fuller reasoning in the leading judgment of my learned brother, Muntaka-Coomassie. JSC which I was privileged to read in draft, I would allow the appeal and order that the appeal be heard by another panel of the Court of Appeal Lagos Division.
U. H. Azikiwe ” Appellant
A. J. Owonikoko SAN ” 4th Respondent/Applicant