➥ CASE SUMMARY OF:
United Bank for Africa Plc v. Ashimina Limited (2018) – CA
by “PipAr” Branham-Paul C. Chima.
➥ COURT:
Court of Appeal – CA/L/1033/2014
➥ JUDGEMENT DELIVERED ON:
Friday, the 23rd day of February, 2018
➥ AREA(S) OF LAW
Fair hearing.
➥ PRINCIPLES OF LAW
⦿ FAIR HEARING MUST BE OBSERVED – FAIR HEARING IS A MATTER OF FACT
My lords, in considering these issues, I bear in mind that they deal frontally with the fundamental issue of the observance of the right to fair hearing in the determination of the civil rights and obligations of the citizen, including corporate legal entity, by Courts and tribunals and even quasi judicial bodies to ensure that decisions are not reached without a due hearing of the parties. However, an allegation of denial of the right to fair hearing, as grave as it could be and the dire consequences it could have on the proceedings and decision of a Court if proved, does not operate in a vacuum but is dependent on the facts and circumstances of each given case. In other words, whether the right to fair hearing was breached or not is a question of facts to be determined squarely on the facts and circumstances placed before the appellate Court since the law is that each case of allegation of breach of the right to fair hearing must be decided on the peculiar facts and circumstances of each case. This is so because fair hearing is primarily a matter of fact. It is only when the facts are ascertained that the law would be applied to the facts so established to see whether or not such established facts constitute a breach of the party’s right to fair hearing. See Newswatch Communications Limited V. Alhaji Ibrahim Atta (2006) 12 NWLR (Pt. 993) 144. — B.A. Georgewill, JCA.
⦿ WHEN FAIR HEARING IS BREACHED, PROCEEDING BECOMES A NULLITY
So, is a complaint alleging the breach of the right to fair hearing as constitutionally guaranteed one of mere technicality? I think not. If not then is it one of substantial justice? I very much think so! The fulcrum of this issue therefore, is the vexed issue of when in law can a proceedings of a Court and the resultant decision be said to be in breach of the right to fair hearing as constitutionally guaranteed to the parties before the Courts in the determination of their civil rights and obligations? This is so because, the effect of a breach of the right to fair hearing, if made out, would almost invariably render such proceedings and resultant decision a nullity. See Ekpenetu V. Ofegobi (2012) 15 NWLR (Pt. 1323) 276; Amadi V. INEC (2013) 4 NWLR (Pt. 1345) 595; Ovunwo & Anor. V. Woko & Ors (2011) 17 NWLR (Pt. 1277) 522; Pan African Incorporation & Ors. V. Shoreline Lifeboat Ltd & Anor. (2010) All FWLR (Pt. 524)56; Action Congress of Nigeria v. Sule Lamido & ors (2012) 8 NWLR (Pt. 1303) 560 @ p. 593; Judicial Service Commission of Cross River State & Anor. V. Dr(Mr) Asari Young (2013) 11 NWLR (Pt. 1364) 1. — B.A. Georgewill, JCA.
⦿ EXPEDITIOUS HEARING MUST BE IN ACCORDANCE WITH FAIR HEARING
I am an adherent and a indeed devoted fan of expeditious hearing and determination of pending cases by the Courts but still it has to be in consonance with laid down rules of procedures and principles, particularly the observance of the inalienable right of the parties to be fairly heard in line with their constitutionally guaranteed right to fair hearing. In my view no Court no matter how zealous a Court is for the expeditious hearing and determination of matters before it can empower it to take away or infringe on the right to fair hearing of the parties and expect the Court to come out untouched by the tinge of invalidity and or nullity of both its proceedings, no matter how well conducted, and its decision, no matter how sound. — B.A. Georgewill, JCA.
⦿ FAILURE TO OBSERVE FEAR HEARING VITIATES THE ENTIRE PROCEEDINGS
The law is now well settled that failure of a Court, such as the Court below in the instant appeal, to observe the right to fair hearing of a party in any proceedings before it, vitiates both the proceedings and the resultant decision of the Court whose proceedings is afflicted by the deadly, incurable and highly contagious virus of denial of fair hearing and this is notwithstanding the merit or otherwise of the respective cases of the parties or indeed how meticulous the proceedings were or even how sound the resultant decision is, they are all a nullity. This, in my finding, is the sure but unfortunate fate of the proceedings and ruling of the Court below as it affects the petition filed by the Appellant against the Respondent in this appeal, which ruling was clearly reached in flagrant breach of the Appellant’s right to fair hearing. This is so because in law the principles of fair hearing are not only fundamental to adjudication but they are also constitutional requirements which cannot be legally wished away. It is indeed a fundamental right of universal application. See Agbapuonwu V. Agbapuonwu (1991) 1 NWLR (Pt. 165) 33 @ p. 40. See also Agbogu V. Adiche (Supra) @p. 531; J.O.E. Co. Ltd V. Skye Bank Plc (2009) 6 NWLR (Pt. 1138) @p.518; Robert C. Okafor & Ors V. AG and Commissioner for Justice Anambra State (1991) 6 NWLR (PT.200) 659. — B.A. Georgewill, JCA.
⦿ FAIR HEARING BEING SO FUNDAMENTAL MUST BE RAISED IN GOOD FAITH
My lords, so fundamental and crucial is the right to fair hearing of the citizen before all Courts of the land that a failure by a Court to observe it in the litigation processes would invariably vitiate both the proceedings and judgment of such a Court, notwithstanding the merit or otherwise of the cases of the parties or indeed how meticulous the proceedings were conducted or even how sound the resultant judgment was on the merit, they are all a nullity. However, it must be pointed out at once that the issue of fair hearing must be raised with all seriousness and in good faith. It must never be raised in bad faith or merely intended as a red herring to raise a storm in a teacup without any factual basis. See Agbogu V. Adiche (2003) 2 NWLR (Pt. 805) 509@ p. 531. See also Agbapuonwu V. Agbapuonwu (1991) 1 NWLR (Pt. 165) 33 @p.40; Adegbesin V. The State (2014) 9 NWLR (pt. 1413) 609 @pp. 641 – 642. — B.A. Georgewill, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Biobele Abraham Georgewill, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT
C.O. Akintola Esq.
⦿ FOR THE RESPONDENT
Adenrele Adegborioye Esq.
➥ CASE FACT/HISTORY
The Appellant granted a loan of US$10,000,000.00 to one Dana Motors Limited for the purpose of establishing letters of credit for the importation of raw materials and other trading products for Dana Group of Companies and a further overdraft facility of N50,000,000.00 to part-finance the Company’s import duties payment. As part of the securities for the said facility granted to Dana Motors Limited, it together with four other companies executed separate Deeds of Guarantee in favor of the Appellant to be individually and unconditionally liable for the said debt on demand by the Appellant.
The Dana Motors Limited fully drew down and utilized the facilities but had failed, refused and be neglected to liquidate the outstanding sums due, despite several demands by the Appellant and as at 4/10/2013, the indebtedness to the Appellant stood at N1,322,744,216.26 and US$20,539.49 on the Naira and Dollars accounts respectively.
This is an appeal against the Ruling of the Federal High Court, Lagos Division, Coram: Saliu Saidu J., in Suit No. FHC/L/CP/77/2014: United Bank for Africa Plc V. Ashimina Ltd., delivered on 9/5/2014, in which the Appellant’s Petition for winding up of the Respondent was dismissed for being an abuse of Court process and some other orders were made against the Appellant in favor of the Respondents.
The Appellant, who was the Petitioner before the Court below, was thoroughly dissatisfied with the said ruling and had promptly appealed to this Court.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL ALLOWED]
🆕I. Whether or not the Appellant was denied fair hearing when the learned trial judge proceeded, to dismiss the Appellant’s Suit No. FHC/L/CP/77/14 without first hearing or entertaining the Appellant’s opposition to the Respondent’s Motion on Notice dated 27th February 2014?
RULING: IN APPELLANT’S FAVOUR.
A. THAT THE RIGHT TO FAIR HEARING OF THE APPELLANT WAS INFRINGED
“The right to fair hearing is sacrosanct and therefore, cannot be lightly disregarded or discarded by the Court. It is indeed one of the pillars on which the concept of justice and fairness is built. In the litigation process, the Court which is to hold the balance between the parties quest for justice, cannot and should not make it a habit of denying a party of his right to fair hearing as constitutionally guaranteed under Section 36 (1) of the Constitution of Nigeria 1999 (as amended), without considering whether the interest of justice will be better served by hearing separately or with the agreement of the parties applications filed in separate unconsolidated petitions than proceedings in such a cavalier manner to hearing both applications in one petition and delivering one ruling in that self same petition but ending up dismissing applications in other sister petitions and also dismissing those sister petitions even without affording the Appellant as well as the Respondent any hearing of those applications in those other sister petitions.”
“On the strength of the evidence of what had transpired on 28/3/2014 and 9/5/2014 before the Court below, and considering the primus place the right to fair hearing enjoys in the litigation process in the due administration of justice, I find that the procedure adopted by the Court below in hearing and determining an application in one petition and determining applications in other sister petitions not even called up for hearing before the Court below on 28/3/2014 was nothing short of a capricious and injudicious exercise of discretion by the Court below. It is both irregular and improper under its own rule but most importantly it amounted clearly to an infringement of the Appellant’s right to fair hearing and I so firmly hold.”
“The Court ought below ought to have exercised its discretion in favor of hearing each of the applications in each of the sister petitions in order not to trample upon the right to fair hearing of any of the parties. It appears or so it seems the Court below was in a hurry to get done with all the sister petitions in one fell swoop but it completely forgot that justice rushed is indeed justice crushed even though justice delayed is equally justice denied. In both circumstances therefore, it is the lack of proper balancing by the Court that leads to the injury. Thus, a Court should neither be too slow nor be too fast as being in haste. It must be patient and painstaking while hearing and deciding the rights, obligations and liabilities of the parties before it by scrupulously observing the right to fair hearing of all the parties before it. In law a Court is under a duty to hear and determine every application before it no matter how frivolous it may be.”
STATUTE: Section 36(6) Nigerian Constitution 1999 (as amended).
.
.
.
✓ DECISION:
“Consequently, the Appellant’s Petition No: FHC/L/CP/77/2014 United Bank for Africa Plc V. Ashimina Limited is hereby remitted to the Chief Judge of the Federal High Court for same to be reassigned to any other judge of the Court below save Saliu Saidu J., for expeditious hearing and determination of the Respondent’s motion on notice filed on 27/2/2014 as well as the Appellant’s motion on notice filed on 21/3/2014 and the said suit if found competent according to law.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (CASE)
⦿ COURT MUST RULE ON ALL APPLICATIONS BEFORE IT
In Ani V. Nna & Ors. (1996) 4 NWLR (Pt.440) 101 @ p. 120, this Court had per Niki Tobi JCA., succinctly observed inter alia thus: “A Court of law and indeed a Court of equity has neither jurisdiction nor discretionary power not to take a process before it, whatever may be its pre-trial opinion on it. The process may be a downright abuse of the judicature as an institution or judicialism. It may be stupid, reckless, irregular, aberrant or unmeritorious; the Court must hear it and rule on it.”
➥ REFERENCED (OTHERS)
