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Azaki Padawa & Ors. v. Agmada Jatau

Court of Appeal

Judgement delivered on Wednesday, May 22, 2002
Citation: 45 NIPJD [CA. 2002] 66/1998
Suit No. CA/J/66/98      Jurisdiction: Nigeria

BEFORE THEIR LORDSHIPS

ALOMA MARIAM MUKHTAR, J.C.A.
IBRAHIM TANKO MUHAMMAD, J.C.A. (Delivering the Lead Judgement)
IFEYINWA CECILIA NZEAKO, J.C.A.

CITED IN

Compact Disc Technologies Ltd. v. Musical Copyright Society of Nigeria

Excerpt from citation:


It is indeed a well founded principle, that respondent’s issues (where the respondent has not cross-appealed), must be distilled, from or  predicated upon, a valid ground of appeal. See ANIMASHAUN VS. UNIVERSITY COLLEGE HOSPITAL (1996) 10 NWLR (PT.476) 65; AROWOLO VS. AKAPO (2003) 8 NWLR (PT. 823) 451; PADAWA VS. JATAU (2003) 5 NWLR (PT.813) 247; AKINLAGUN VS. OSHOBOJA (supra) at 90 paragraphs D-G, respectively.

I. FACTS

The plaintiff was suing for himself and on behalf of the Jatau family of the Kabulu (Zangniyi) Ruling House of New Kulo village. His claim before the trial court (Nasarawa State High Court of Justice holden at Keffi) were stated as per paragraph 21 of the statement of claim.

They read as follows:

“WHEREOF the plaintiff for himself and on behalf of the Jatau Family of Kabulu (Zangniyi) Ruling House of New Kula claims against the defendant jointly and severally:

A. A Declaration:

i. That the Kabulu (Zangniyi) Ruling House of New Kulo is the rightful Ruling House to present a chieftaincy candidate for the New Kulo Village and not the Galla (Zakwoyi) Ruling House;

ii. That Awyebwi Jatau of the family of the Kabulu (Zangniyi) Ruling House is the rightful chief (Ward Head) of New Kulo Village, having been selected and installed in accordance with the custom and tradition of the people of Kulo;

iii. That the subsequent purported selection and installation of the 1st defendant is wrongful, contrary to the custom and tradition of the Kulo people and therefore null, void, and of no effect;

iv. That the correspondents (letter) of the Toto Local Government Council dated the 21st day of May, 1992, which in effect supports the 1st defendant is ill-founded, erroneous, null, and of no effect;

v. That the decision of the 11th defendant in support of the 1st defendant is ill-founded, baseless, erroneous, null, void and of no effect;

B. A perpetual injunction restraining the 1st to the 9th defendants by themselves and as representatives of the Galla (Zakwoyi) Ruling House, the 10th and 11th defendants, their servants, subordinates, agents, privies, representatives and all or any body or bodies claiming to act for and on their behalf from portraying the 1st defendant as chief of New Kulo Village of Toto Local Government Areas, Plateau State.”

The case was filed against the defendants. The record of appeal shows that two of the defendants died leaving nine of them. Toto Local Government and Toto Traditional Council became the 8th and 9th defendants who, hitherto, appeared as numbers 10 and 11 respectively, on the writ of summons. In course of the proceedings,  learned Counsel for the 8th and 9th defendants on the 28th day of October, 1997, told the trial court (orally) that he had a very short application in which he prays as follows:

“We have made concerted effort to be briefed by our client such efforts yielded no result. In the circumstances, we have no option than to withdraw from the matter. This is even moreso that we have not even filed a memorandum of appearance in the matter.”

The trial court obliged him in the following words:

“Court:

The application by the Senior State counsel to withdraw his appearance for the 8th and 9th defendants is granted.”

Soon thereafter, learned Counsel for the plaintiff informed the trial court that he had a motion on notice and he was ready to move it.

Learned Counsel for the 1st – 7th defendants said that they were ready for the motion. The motion was accordingly moved and it was adjourned for ruling. On the 21st day of November, 1997, the learned trial Judge delivered his ruling wherein he entered judgment against the 8th and 9th respondents in default of defence.

Aggrieved by the ruling, the 1st – 7th defendants as appellants filed their appeal to this court on three grounds against the plaintiff as respondent herein.

In compliance with Order 6 of the Court Rules 1981 (as amended), parties filed and exchanged briefs of arguments. Learned Counsel for the appellant set out four issues for determination viz.:

“1. Whether the declaratory reliefs sought by the plaintiffs against the 1st to the 7th defendants vis-‘E0-vis the 8th and 9th defendants were such a claim as are severable, that warranted the trial court to have entered judgment against the 8th – 9th defendants in default of defence.

2. Whether the judgment of the trial court against the 8th-9th defendants did not foreclose the 1st- 7th defendants defence to the plaintiff’s claim thereby depriving the 1st – 7th defendants right to fair hearing.

3. Whether the trial court acted properly in proceeding immediately to hear the motion for judgment against 8th and 9th defendants, when their counsel was allowed to withdraw his appearance in the case for them.

4. And if issue No.3 can be answered in the negative, whether failure by court to order hearing notices to be served on 8th and 9th defendants to appear in court or engage new counsel, did not deprive them of the right to fair hearing.”

Learned Counsel to the respondents formulated two issues:

“1. Whether the appellants have locus standi to file the notice of appeal against the judgment, against the 8th and 9th defendants and if the notice of appeal filed before this Honourable Court whether it is competent.

2. Whether the trial court can give judgment for the plaintiff on the motion on notice for judgment filed in terms of reliefs iv and v sought against the 8th and 9th defendants, when the 8th and 9th defendants did not file memorandum of appearance, statement of defence and counter-affidavit to challenge the averments of the plaintiff in the motion for judgment.”

On the hearing date, learned Counsel for the appellant adopted and relied on his brief. He had nothing to add. He urged this court to allow the appeal and set aside the ruling of the lower court and order for the hearing of the suit on its merit. Learned Counsel for the respondents adopted and relied on his brief. He urged the court to dismiss the appeal as this court lacks jurisdiction to hear same.

Let me start by observing that the grounds filed, as is clear from the record of appeal before me, are only three. (See page 20-21 of the record). In defiance to the established practice of formulation of issues, the learned Counsel for the appellant went on his own way to formulate four issues out of three grounds. The law is still very clear and apt that proliferation of issues against grounds of appeal filed is an unwelcome practice. The Supreme Court and this court have reiterated this point in countless number of decided  authorities. See Agbaisi v. Ebikorefe (1997) 4 NWLR (Pt. 502) 630; Udene v. Ugwu (1997) 3 NWLR (Pt. 491) 57; Ali v. CBN (1997) 4 NWLR (Pt. 498) 192. Counsel should not turn deaf ears, blind eyes and impervious hearts to this important principle of practice of brief writing. See Ajagungbade III. v. Laniyi (1999) 13 NWLR (Pt. 633) 92. Issues Nos.3 and 4 of the appellant’s issue both touch on the competence of the trial court to entertain the motion against the 8th and the 9th defendants. This is covered by ground of appeal No.3. Thus, I find it convenient to merge issues 3 and 4 into one. They congeal to give rise to a new issue 3, which is herein below re-framed. See Nnaji v. Ede (1996) 8 NWLR (Pt. 466) 332:

“3. Whether failure by the trial court to order hearing Notices to be served on the 8th and 9th defendants to appear in court, when their counsel withdrew his appearance did not deprive them of the right to fair hearing.”

I shall determine this appeal on the issues formulated by the appellant.

Even though I observe in the respondent’s brief points in his issue one challenging the competence of the appeal itself and whether this court has jurisdiction to hear the appeal. It is a pity that the learned Counsel for the respondent did not raise such issues by way of preliminary objection as requested by Order 3 rule 15 of the Court of Appeal Rules 1981 (as amended), nor did he base the issue formulated i.e. issue No.1 of his issues on any ground of appeal filed. It is trite law that where a respondent finds it necessary to formulate his issues, where he has not filed a cross-appeal, issues formulated by him must arise from the grounds of appeal filed by the appellants. See Prince Oyesunle Alabi Ogundare & Anor. v. Shittu Ladokun Ogunlowo & Ors. (1997) 5 SCNJ 281, (1997) 6 NWLR (Pt.509) 360; Animashaun v. University College Hospital (1996) 12 SCNJ 179, (1996) 10 NWLR (Pt.476) 65; UAC (Nig.) Ltd. v. Global Transport S.A. (1996) 5 NWLR (Pt. 448) 291

In arguing issue No.1; learned Counsel for the appellant submitted that the reliefs claimed by the plaintiff in paragraph 21(b) is for injunction against the 1st to 7th defendants and 8th – 9th defendants jointly and severally. Order 27 rule 8(2) of the High Court (Civil Procedure) Rules applicable in Nassarawa State, confers on an appellant the right to proceed against a defaulting defendant in a claim involving more than one defendant if the claim is severable as between the defendants. He argued further that the suit before the trial court not being severable did not come within the contemplation of Order 27 rule 8(2). It was submitted that judgment in default of defence is not always given in a claim for declaratory relief. Learned Counsel relied on the case of Nigeria Airways Lid. v. Yahaya Ahmadu (1991) 6 NWLR (Pt. 198) 492 at 499.

In his submission, learned Counsel for the respondent argued that Order 27 rule 9(1) (2)(a)(b) of the Nassarawa State High Court (Civil Procedure) Rules 1987, gave the lower court the power to give judgment against the 8th and 9th defendants, having failed to file memorandum of appearance and a statement of claim. The reliefs sought against the 8th and 9th defendants were severable from the reliefs sought against the 1st – 7th defendants. The decision of the lower court, he submitted, could not prejudice the trial in respect of the 1st – 7th defendants. Argued further for the respondent is that both the 8th and 9th defendants were nominal defendants and the case could be pursued with or without them.

I think claims can be severable, where they relate to multiple parties in order to allow separate actions on each claim or against an individual. A single claim/cause of action is by itself a subject matter of a suit. Rules of court allow, in many cases, a plaintiff to sue for different claims/causes of action in a suit either against an individual or two or more individuals. It may as well be that a defendant need not be sued in respect of all the causes of action, but only in some or only one of them. Order 27 rule 8(1) and (2)(a) and (b) of the Benue State High Court (Civil Procedure) Rules 1988, as follows:

“8(1) Where the plaintiff makes against a defendant or defendants a claim of a description not mentioned in rules 2 to 6, then if the defendant or all the defendants (where there are more than one) fails or fail to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed as aforesaid for service of the defence apply to the court for judgment, and on hearing of the application the court shall give such judgment as the plaintiff appears entitled to on his statement of claim.

(2) Where the plaintiff makes such a claim as is mentioned  in paragraph (1) against more than one defendant then, if one of the defendants makes default as mentioned in that paragraph the plaintiff may:

(a) If his claim against the defendant in default is severable from his claim against the other defendants apply under that paragraph for judgment against that defendant, and proceed with the action against the other defendants; or

(b) Set down the action on motion for judgment against the defendant in default at the time when the action is set down for trial, or is set down on motion for judgment against the other defendants.”

Paragraph 21 ‘A’ and ‘B’ of the statement of claim contains the claim of the plaintiff against the defendants. In particular, paragraph 21A(iv) states:

“21A(iv) That the correspondent (letter) of the Toto Local Government Council dated 21st day of May, 1992, which in effect, supports the 1st defendant is ill-founded, erroneous, null and void and of no effect.

(v) That the support of the 1st defendant is ill-founded, baseless, erroneous, null and void and of no effect.”

Paragraph 21(B) asked for:

“A perpetual injunction restraining the 1st to 9th defendants by themselves and as representatives of Galla (Zakwoyi) ruling House, the 10th and 11th defendants, their servants, subordinates, agents, privies, representative portraying the defendant as Chief of New Kulo Village of Toto Local Government Area, Plateau State (now Nassarawa State).”

While moving his motion for judgment in default of appearance against the 8th and 9th defendants, learned Counsel for the 1st – 7th respondents/defendants argued that the actions against the 8th and 9th respondents were not severable from those of the 1st respondent and he relied on Order 27 rule 8(2) to buttress his submission. In his ruling, the learned trial Judge found that the claim against the 8th and 9th defendants were severable from that against the 1st – 7th defendants. He proceeded to enter judgment in default, against the 8th and 9th defendants. In his reasoning process the learned trial Judge stated:

“Nevertheless, closely looking at the reliefs sought in paragraph Ai, ii and iii one would clearly see that they differ from those prayers in Aiv and v. This is because the first three claims are directly against the 1st – 7th respondents with the 8th and 9th respondents as nominal (sic) respondents, while in the last two (iv and v) they are 8th and 9th respondents being three (sic) (three) as nominal (sic) parties… Those as can be seen are matters strictly for the responses by the 8th and 9th respondents who did not deem it necessary to controvert or deny.

It is for this reason that I find that the action against the 1st – 7th respondents can be separated from those of the 8th and 9th respondents and I so hold.”

I am in agreement with the learned trial Judge’s reasoning process and the ultimate finding and holding. Since the claim granted against the 8th and 9th defendants were severable the learned trial Judge was right in entering a default judgment against the 8th and 9th defendants. Accordingly, issue 1 is resolved hereby, in favour of the respondent.

Issue No.2 questions whether the judgment entered against the 8th and 9th defendants did not foreclose the defence of the 1st – 7th defendants and thereby, depriving them of right to fair hearing. The arguments of learned Counsel for the 1st – 7th defendants/appellants are that the judgment against the 8th and 9th defendants had greatly hampered them in proceeding with the defence of the suit and their defence was foreclosed. It also meant that the 1st – 7th defendants were constrained or restrained from calling them or any servant in the office of 8th and 9th defendants as witnesses for the purpose of the trial, and that would deny them fair hearing.

Learned Counsel for the respondents argued that the two reliefs sought against the 8th and 9th defendants were just to remove the support of the 8th and 9th defendants in favour of the 1st defendant’s appointment. The decision of the lower court could not prejudice the trial in respect of 1st – 7th defendants. Further, 8th and 9th defendants were nominal defendants and the case could be pursued with or without them.

I equally think as much. Judgment entered against the 8th and 9th defendants on claims which were severable could hardly prejudice the trial of the suit in respect of the remaining defendants, i.e. Nos. 1-7. Their trial, since they complied with the principles of pleading i.e. by filing their memorandum of appearance and statement of defence, could proceed in order to determine the claims against them on the merit. This issue is resolved in favour of the respondent.

On issue No.3 (reframed), learned Counsel for the appellants submitted that from the moment counsel for the 8th and 9th defendants withdrew his appearance for them, there was no attempt by the trial court to get the 8th and 9th defendants notified of the motion against them and the pending suit. The trial court, he argued, did not act properly. Learned Counsel cited a host of authorities to buttress his submission.

Learned Counsel for the respondent submitted that the appellants have no locus standi to appeal against the judgment, as it was not against them. The 8th and 9th defendants against whom the judgment was given did not appeal against the judgment because they were satisfied with the judgment. Learned Counsel cited the case of Ogunbiyi v. Ishola (1996) 6 NWLR (Pt. 452) 12 at 23.

In a reply brief, learned Counsel for the appellants submitted that it was as a result of the decision of the trial court in an interlocutory application brought by the respondents which affected the interest of the appellants in the main suit with which they were dissatisfied. This made them to seek leave to appeal against the said decision. They were parties to the suit and not interested parties and have a right of appeal under the provision of section 222(a) of the Constitution of the Federal Republic of Nigeria, 1979. In the determination of this issue, it appears pertinent for me to know who filed this appeal. The notice of appeal dated 27th day of November, 1997, filed at the lower court and contained on pages 2021 of the record of appeal reads in part;

“TAKE NOTICE that the 1st – 7th defendants/appellants being dissatisfied with the decision of the Nasarawa State High Court sitting at Keffi in its original jurisdiction contained in the ruling of his Lordship Justice Badamasi Maina dated 21st November, 1997, do hereby appeal to the Court of Appeal upon the grounds set out in paragraph three (3) and will at the hearing of the appeal seek the reliefs set out in paragraph four (4).”

It is clear that the above notice of appeal was filed for and on behalf of the 1st – 7th defendants by learned Counsel for the appellants, Mr. Abongaby. The respondents’ address was supplied through their counsel Mr. Abba R. Agor Agalanga. The 8th and 9th defendants did not feature as having any matter filed to this court except that their names appeared on the list of “appellants” on the top of the notice of appeal. All the grounds of appeal set out in the notice of appeal portray a complaint emanating from the 8th and 9th defendants. It is gatherable from the record that when ruling was delivered on 21st November, 1997, the 8th and 9th defendants, were not in court. When motion in respect of the ruling was heard on the 28th day of October, 1997, the 8th and 9th defendants were not in court and were not represented as leave was granted by the trial court to the counsel for the 8th and 9th defendants to withdraw from the matter. One Brenda Maigida appeared on that day for the 1st-7th defendants. It is clear therefore, that there was no notice of appeal filed by the 8th and 9th defendants. Ordinarily, an appellant is a person who resorts to an appellate court for a review of a decision made against him by an inferior court. By our Rules of court, (1981 as amended), an appellant means any person who desires to appeal or appeals from a decision of the court below or who applies for leave to so appeal, and includes a legal practitioner representing such a person in that behalf. He is the one who opposes the ruling or judgment of the court below. Ichu v. lbezue (1999) 2 NWLR (Pt. 591) 437. The question raised by learned Counsel for the respondent is: Can the 1st – 7th defendants in the circumstances of this case, appeal in respect of the lower court’s ruling of 21/ 11/97? This calls for the determination of who has the right of appeal and under what circumstances? It has been made clear by the Supreme Court that a right of appeal to the Court of Appeal is a Constitutional right exercisable by a party in a civil suit. Eyesan v. Sanusi (1984) 4 SC U5 at 136, (1984) 1 SCNLR 253. The Constitution of the Federal Republic of Nigeria, 1999, provides in section 243(a) that any right of appeal to the Court of Appeal from the decisions of a High Court in civil proceedings is exercisable at the instance of a party thereto, or, with the leave of the High Court or the Court of Appeal, at the instance of any other person having an interest in the matter. Thus, each of the plaintiff and defendant or the applicant or petitioner and the respondent in civil proceedings has a right of appeal. By necessary extension of the rule therefore, the parties or any other person named in the record could appeal. A non-party not named on the record but having an interest in the matter must apply for leave in order to appeal. However, the important point to note is that a party appealing must have been aggrieved by the decision as a party cannot appeal against a decision in his favour. See Prof Awojobi v. Dr. Ogbemudia (1983) 8 SC 92.

A person may be a party to a suit but may be contented with the decision delivered by the trial court.

He may not be in quest of any need to appeal. His non-appealing cannot foreclose any other party in the suit to appeal. Equally, there may be non-parties having interest in the proceedings and who may want to appeal as ‘persons interested’ and are directly affected or likely to be affected by the result of the decision. Such persons can join by leave of court as interested parties. Examples are beneficiaries of a will appealing against a decision annulling the will, the executors being parties but deciding not to appeal as held in Maja & Ors. v. Johnson (1951) 13 WACA, 194; or in case of children of a testator joining the appellants in an appeal arising from an action for probate of will in solemn form brought by the executors against the widow of the testator as was the case in Johnson v. Aderemi (1955) 13 WACA 297. Ejiwunmi, JSC, put it in a clearer language, in the case of Societe Generale Bank (Nig.) Ltd. v. Afekoro (1999) 11 NWLR (Pt. 628) 521 at 541-542, when he said:

“It is manifest from a careful reading of section 222(a) of the 1979 Constitution that under that section, either party to the action in the High Court has a right of appeal to the Court of Appeal. But where a party, described as an ‘interested party’ wishes to appeal against the decision of the High Court that party is obliged to obtain the leave of the High Court or the Court of Appeal, prior to the hearing of the appeal. But such leave can only be granted to that ‘interested party’, if he could show his interest in the decision for which he is seeking leave to appeal. It is therefore clear, in my respectful view, that a busy body, or a meddler in the affairs of other is not likely to be granted such leave. In other words, a person who wishes to appeal in such circumstances must show that he was aggrieved by the decision, in the sense that he had suffered a legal grievance. He must show that the decision wrongfully deprived him of something, or wrongfully refused him something. It must also be shown that the decision is likely to affect or aggrieve the person seeking for such leave to appeal to the Court of Appeal.”

The point of distinction between a party who is on record and a nonparty having interest in the case, is that whereas the former does not require leave of court to appeal unless where he appeals out of time, or where his grounds of appeal are on questions of mixed law and fact, or he is appealing on a decision of the High Court, where it exercised its appellate jurisdiction or in any other situation where leave of court is made mandatory by Constitution or rules of court. A non-party having interest in the matter should first and foremost seek leave to join and be made a party in the matter as his name did not feature in the record of proceedings. If he is out of time or wants to appeal on grounds of law and fact etc, he should ask for all the relevant reliefs available for the prayers. The argument of learned Counsel for the respondents is that there was no motion before the lower court and before this court for the 1st – 7th defendants to appeal as an interested party as provided by section 222(a) of the 1979 Constitution. This made the notice of appeal filed incompetent, null and void, making this court lacking in jurisdiction to entertain the appeal and it should be dismissed. Learned Counsel cited and relied on Tilbury Construction Co. Ltd. v. Ogunniyi (1988) 2 NWLR (Pt. 74) 64 at 65. From the record of appeal before this court, it is clear that the learned Counsel for the respondents filed a motion on notice dated 26th day of November, 1979. The motion prayed for the following reliefs:

“1. Granting leave to the 1st – 7th defendants to appeal against the ruling of the High Court Keffi, delivered on the 21st day of November, 1997;

2. And for such further order(s) as the Honourable court may deem fit to make in the circumstance.”

In the affidavit in support, one Esther Jack, a litigation Secretary in the office of the 1st – 7th defendants’ counsel swore to the following facts:

“2. That the 1st – 7th defendant/appellants are defendants in a suit still pending before the honourable court.

3. That the honourable court delivered a ruling in favour of the plaintiffs/respondents against the 8th and 9th defendants upon a motion for judgment in default of defence.

4. That being dissatisfied with the said ruling, the 1st -7th defendants have appealed to the Court of Appeal,  Jos a copy of the notice of appeal is shown to me and annexed hereto as exhibit ‘A’.

5. That I am informed by Chris D. Abongaby of counsel and I verily believe him to be true as follows:

(i) That the ruling against the 8th and 9th defendants had affected the substance of the 1st – 7th defendants’ defence.

(ii) That the 1st – 7th defendants’ defence has been adversely affected as result of the court’s ruling.

6. That the notice of appeal of the 1st – 7th defendants raised substantial points of law, therefore leave to defend need to be granted to the defendants/applicants.

7. That the plaintiff/respondents will not be prejudiced by the application.”

When the motion came up for hearing, learned Counsel for the plaintiff/respondents told the trial court that:

“I have no instruction to handle this case, but to ask for a stand down.”

The appellants/applicants/defendants’ counsel informed the court:

“We needed only 14 days to file our notice of appeal and is expiring tomorrow, hence, we apply to move our motion.”

The learned trial Judge ruled that since the respondents had been put on notice the learned Counsel for the applicant could proceed.

The motion was accordingly moved. In his considered ruling, the learned trial Judge granted the motion in the following terms:

“Having heard Mr. Brenda Maigida in his motion for leave to appeal against the ruling of this court, having satisfied myself that the respondent was only served but fail to appear in court and the fact that an appeal against a ruling or judgment of the court to my mind only helps in developing the law, I have no reason to refuse to granting this application as doing so will tantamount to shortly (sic) the applicant’s right of appeal, consequently I grant leave to the 1st – 7th applicants to appeal against the ruling of this court delivered on the 21st day of November, 1997.

I further deemed the notice of appeal as duly filed.”

Thus, I find it difficult to agree with the learned Counsel for the respondent in his submission that, there is no competent notice of appeal before this court as there was no leave of the court to appeal before the appeal was filed. It is my view, that even where an appeal was irregularly filed and steps were taken later to regularise it, I think it becomes competent once the court grants an order for regularising it. The essence of my analysis above on a party on the record who ipso facto has a right of appeal and a party interested who requires leave of court to appeal is to draw the attention of learned counsel for the respondent that the 1st – 7th defendants have every right of appeal on the ruling of the lower court. paragraphs 5 and 6 of the affidavit in support of the motion under review have disclosed how the 1st – 7th defendants/appellants were affected by the ruling. I find support in what Obaseki, JSC said in Eyesan v. Sanusi (1984) 4 SC 115 at 136 – 137, (1984) 1 SCNLR 353:

“A right of appeal to the Court of Appeal is a constitutional right exercisable by a party in a civil case.

See section 222(a) and (b) of the 1979 Constitution. The right of action in court is also a constitutional right exercisable by a person, who has complaints touching his civil rights obligations against another person, government or authority. See section 6(6)(b) section 22(i) and section 236(i) of the 1979 Constitution. Once the exercise of this right of action has commenced, the exercise is not completed until the action is finally and completely determined by the court of 1st instance or the appeal court.”

Bello, JSC, (as he then was), in Adesanya v. President of Nigeria (1981) 2 NCLR 358 stated:

“To entitle a person to invoke judicial power to determine the constitutionality of such action, he must show that either his personal interest will immediately be or has been adversely affected by the action or that he has sustained or is in immediate danger of sustaining an injury to himself…”

See further: Kalu v. Odili (1992) 5 NWLR (Pt. 240) 130; Ojukwu v. Gov. of Lagos State (1985) 2 NWLR (Pt.10) 806; Mbanu v. Mbanu (1961) 1 All NLR 652; Maja v. Johnson (1951) 13 WACA 194, In my view, the 1st – 7th appellants have locus standi in this appeal.

The notice of appeal filed by order of the lower court is quite competent. This court can rightly exercise its jurisdiction on the appeal. See Ezechigbo v. Gov. of Anambra State (1999) 9 NWLR (Pt. 619) 386; Ajagungbade III v. Laniyi (1999) 13 NWLR (Pt. 633) 92; Egolum v. Obasanjo (1999) 7 NWLR (Pt. 611) 423; Ogunmokun v. Mil. Admin. of Osun State (1999) 3 NWLR (Pt. 594) 261.

Let me say that when it comes to the question of fair hearing I think authorities are unanimous that there has to, in the first instance, be a hearing before anyone can talk of whether that hearing was fair or not. To constitute a hearing, it is necessary that both parties at the issue must know what the case is all about and then be afforded the opportunity to present their version of the issue. The Constitution and the Common Law principle of Audi Alteram Partem insist that each party must not only be heard but must be afforded the opportunity to present/defend the case either in person or through a counsel of their own choice. See section 36(1)(a); 6(c) of the Constitution of the Federation, 1999.

Determination of right included, in my view, the determination of a party’s right to chieftaincy stool as is the case in the appeal on hand.

It is thus, mandatory for the administering authority, i.e. the court below, to have afforded the parties adequate opportunity for the preparation of their case. It is true that on 28/10/97, the learned trial Judge granted leave to the counsel representing the 8th and 9th defendants to withdraw his appearance, on their behalf. From the very moment learned Counsel withdrew his appearance the 8th and 9th defendants were no more represented. If they were in court, they would choose to either go on with the matter or ask for adjournment to get another counsel who would take over the matter. It is clear that the record does not show whether the 8th and 9th defendants were in court.

The presumption, in any event is that they were not in court. And since they were not in court, they were entitled to be put on notice of the existence of that motion for entering judgment for the plaintiff against them. In other words, they ought to have been served personally now, with fresh hearing notices. This was not done by the lower court. The position of the law is, as I once stated in my dissenting judgment, in the case of Ogili Oko Memorial Farm Ltd.  & I Or. v. Nigerian Agricultural & Co-operative Bank Ltd. & I Or.(unreported) Appeal No. CA/J/128/96 of 29th day of November, 1999:

“I think the essence of all types of service of processes, whether personal, through counsel or substituted, is to give notice to the other party on whom service is to be affected so that he might be aware of, and be able to resist, if he may, that which is sought against him. It must therefore be of primary consideration to the court to be satisfied that service was in fact effected. See United Nigeria Press Ltd. v. Adebanjo (1969) 1All NLR 431; Odutola v. Kayode (1994) 2 NWLR (Pt. 324) 21.

If all required is properly done and the party served does not appear in court on the date shown in the hearing notice the court has two options in treating the counterclaim as in this instance. The first option is to proceed to try the counter-claim after the court has satisfied itself that the plaintiffs had notice of hearing of the counterclaim.

The second option is for the court to adjourn the hearing of the counter-claim and direct that notice of such adjournment be given to the plaintiffs. See Dan Hausa v. Panatrade (1993) 6 NWLR (Pt.298) 204, (1993)7 SCNJ 100 at page 111, Per Kawu, JSC. Thus, in either case, the law enjoins the court to give the plaintiff a fair opportunity of being heard which will of course be in keeping with the principles of fair hearing guaranteed by the Constitution and the Common Law principles of natural justice. So in a situation such as the one on hand, where the trial court was not cautious enough to ascertain whether the plaintiffs were actually served with all the courts processes including the hearing notice against the counter-claim, that court is rendering its decision however well conducted, to be a naught. This is because, as is repeatedly said, where notice of any proceeding is required, failure to notify any party is a fundamental omission which entitled the party not served and against whom any order is made in his absence to have the order set aside on the ground that a condition precedent to the exercise of jurisdiction by that court for the making of such order has not been fulfilled and that order is clearly a nullity. See Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535 at page 553-554 Per Ogundare, JSC.”

I stated again, in the case of So Mai Sonka Co. (Nig.) Ltd. & 2 Ors. v. Eng. Adsege Appeal No. CA/J/96/2000 of 18th January, 2001:

“Hearing notice is nothing short of that court’s process by which a party to the proceedings is notified of the date the matter has been fixed in court, where he is not otherwise aware of such date. Except where the defendant and or his counsel are in court, the next date of adjournment shall be brought to his or his counsel’s notice.”

Thus, if the court shall close its eyes on that exercise, then the court is committing a blunder which shall be reversed Ex Debito Justitiae by the appeal court. In any proceeding therefore, a trial court or even the appeal court for that matter, cannot begin to hear a matter before it, unless it is abundantly sure that the defendant is aware that the matter against him is fixed for hearing on a given date.

To say that the 8th and 9th defendants were nominal defendants and the case “can be pursued with or without them,” as argued by learned Counsel for the respondent, is a misconception of the principles of service processes on a party named in the record. A party is referred to be nominal or formal, who, having some interest in the subject-matter before the court will not be affected by any judgment but is nonetheless joined in the matter to avoid procedural defects. This is the position given to the 8th and 9th defendants by learned Counsel for the respondent. Before this court however, since their names features in the record, they remain to be parties on the record. In Ekennia v. Nkpakara (1997) 5 NWLR (Pt. 504) 152 at 170-171, Iguh, JSC stated:

“It cannot be disputed that the term “parties” includes not only those named on the record of proceedings but also those represented and who had an opportunity to attend and protect their interest in the proceedings. See Esiaka v. Obiasogwu 14 WACA 178; Oforiata v. Agyei & Another 14 WACA 149; Mabel v. Richard Akwei 14 WACA 143.”

It is my view that the 1st – 7th appellants in this appeal have more than “sufficient interest” to protect in this case. “Sufficient interest” as defined by my learned brother, Tobi, JCA, is broad and generic.

It is also vague and nebulous, not capable of a precise legal definition in VACUO but, only in relation to the circumstance of the case before the court. See: In Re: Obianwu (1999) 12NWLR (Pt. 629) 78 at 83 – 84. In the present appeal, it is true that the 8th and 9th defendants were unaware of the motion heard on 28/10/97. There was therefore a breach of the fundamental right of fair hearing in respect of the 8th and 9th defendants. This has in my view adversely affected the case of the 1st – 7th defendants/appellants. Let me refer once more to the declaration made by the learned trial Judge in his ruling:

“I accordingly declare that the correspondence letter of the Toto Local Government Council dated the 21st day of May, 1992, which in effect supports the 1st defendant is ill-founded, erroneous, null, void and of no effect.

That the decision of the 9th respondent (Toto Traditional Council) in support of the 1st defendant is ill-founded, baseless, erroneous, null, void and of no effect.

Further I order a perpetual (sic) injunction restraining the 8th and 9th defendants/respondents (Toto Local Government and Toto Traditional Council) their servants, subordinates, agents, privies, representatives and all or any body or bodies claiming to act and on their behalf from portraying the 1st defendant as the Chief of New Kulo Village of Toto Local Government Area of Nassarawa State.”

I agree with learned Counsel for the appellant in his submission that the letter of the Toto Local Government Council of 21/5/92, which supported 1st appellant’s appointment as Chief of New Kulo Village was rendered void and ineffectual. The support given by the Toto Traditional Council on the appointment of 1st appellant was rendered void and ineffectual too. This, in my view, greatly affects the interest of the 1st appellant. In my view, the ruling of the learned trial Judge of 21/11/97, was done without due regard to the principles of fair hearing and is a complete nullity. See United Nigeria Press Ltd. v. Adebanjo (supra); Odutola v. Kayode (supra). This issue must and is hereby, resolved in favour of the appellants.

On that note, I find merit in the appeal and same is hereby allowed. The ruling of the trial court delivered on 21/11/97 is hereby set aside. I remit the case to the Chief Judge of Nassarawa State for it to be heard afresh on its merit by another Judge of the State High Court apart from Maina, J. I order each party to bear own costs in this appeal.

MUKHTAR, J.C.A.: I have had the opportunity of reading in advance, the lead judgment just delivered, by learned brother, Muhammad, J.C.A. I agree with the reasoning and conclusion, reached that the appeal should succeed. I abide by the consequential orders, made in the lead judgment.

NZEAKO, J.C.A.: I have read before now, the leading judgment of my learned brother, Muhammad, JCA. I see some merit in this appeal, and agree that it be allowed. I abide by the consequential orders made therein.

 II. JUDGEMENT

Appeal allowed.

Retrial ordered.

Appearances: C.D. Abongaby for the Appellant

O. Makanjuola, Esq. (with him, Ola Olu) for the Respondent

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