➥ CASE SUMMARY OF:
Alhaji Rasaki Abiola Ekunola V. Central Bank Of Nigeria & Anor. (2013) 15 NWLR (Pt. 1377) 224
by Branham Chima (LL.B.)
➥ ISSUES RAISED
Suo moto fair hearing.
➥ CASE FACT/HISTORY
The plaintiff (appellant) has been employed by the 1st defendant/respondent in 1965 as a Technician and has risen to become Assistant Director, Building Engineering Services Department by the time of his dismissal in February 2000. He has filed this action against the defendants/respondents in the Federal High Court, Lagos claiming as per the amended statement of claim a number of declaratory and injunctive reliefs.
At the conclusion of evidence at the trial the plaintiff alone has testified in person and has tendered Exhibits ‘A’ to L1′ and the defendants have called two witnesses and have tendered Exhibits ‘M – M3’.
The trial court in its considered judgment has dismissed the plaintiff’s claim in its entirety; in doing so it has struck out the 2nd defendant/respondent in the matter.
Dissatisfied with the judgment the plaintiff has appealed the case to the Court of Appeal Lagos which in its judgment also has dismissed the appeal.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
↪️ I. Whether the learned Justices of the court below were right on the facts of the case when they held that ‘the complaint of lack of fair hearing by the trial Judge has not been made out and/or that the learned trial judge did not breach the principle of fair hearing in not calling upon counsel to address him on the two issues formulated suo motu?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[FAIR HEARING WAS NOT DEPRIVED THE APPELLANT BY THE LOWER COURT
‘There can be no doubt from the foregoing resume that “fair hearing” has become the whipping principle for counsel trying to catch at a straw to sustain a modicum of standing in a hopeless case where the case is already dead as a dodo. This approach of counsel in general is deprecated. Fair hearing should for what it is and represents in our adjudicative process before the courts be invoked with every sense of seriousness and in appropriate settings. It is not the case in the instant appeal.’
‘It is noteworthy that this issue as encapsulated herein has been satisfactorily exhausted by the lower court in its decision on the same question, which I uphold in toto. To raise the same issue predicated on a much weaker and stale arguments in this court is highly deprecated particularly as the finding in this respect by the court below is not perverse but founded on accepted and admitted facts and evidence on the record. The judgment cannot be faulted.’
‘Courts should not make it a point of practice to formulate issues for the parties suo motu and deciding them without calling on both parties to address it in the process as it negates one of the cardinal principles of hearing the parties and providing a level playing ground in a trial of their matter before condemning either of them. Formulating issues by courts should be subjected to the rider of calling upon the parties to address it in such instances before judgment. By this process a modicum of opportunity as it were, is afforded the parties on the question; this accords with a reasonable man’s sense of having justice seen to be done. This is because courts should not be seen to jump pre-emptorily into the arena of contest however tempting the cause as courts have to avoid being muddied in the process of adjudication of cases before them and thus lose their centrality of impartiality as neutral umpires in our adjudicative system. To hold otherwise will undoubtedly unduly shackle the discretion of courts in the adjudicative process as this will not be grounded on any relevant rules of court or substantive law as such. I can find nothing offensive in such exercises. I uphold the intervention in this instant case upon its peculiar facts in the interest of justice. And it is my view that no denial of fair hearing amounting to a miscarriage of justice has thus been occasioned to the appellant.’
‘In the instant case the trial court as rightly found by the court below has merely condensed/summarised the issues as formulated by the parties to the two issues raised suo motu and has proceeded to decide them. One notable point as regards the said issues so formulated is that they are consistent with the grounds of appeal filed by the appellant in the appeal. These issues have unquestionably arisen from the said grounds and have clearly crystallized the substance of the complaint as contemplated in the grounds, the pleadings and evidence before the trial court and on the record before the lower court and have been necessitated in the interest of justice. In short, the trial court has simply condensed/summarized the issues raised by the parties in their cases. Therefore, I do not see any leg on which to stand to upturn the lower court’s decision on this point particularly so, if I may repeat when it has not occasioned a miscarriage of justice. I have made these points to support the opinion that courts have the power to formulate issues for the parties in appropriate cases when the justice of the cases as in this case so demands. It is a power to be sparingly exercised with extreme caution. In Labiyi v. Anretiola (supra) this court has held per Karibi-Whyte JSC that: “The court below was free either to adopt the issues so formulated by learned counsel or to formulate such issues that are consistent with the grounds of appeal filed by the Appellant. It is in the observance of this principle in pursuit of the proper administration of justice that the court below considered an appropriate formulation of the issues consistent with the grounds of appeal filed when it was observed that although the grounds of appeal were inelegantly drafted, the complaints therein were clear and not misleading”. I am in unison with the reasoning in the above abstract in the judgment of my noble Lord and rely on it to hold in support of my reasoning herein that the appellant on the whole in the instant appeal has failed to nail the denial of fair hearing on the head in regard to his contention of the negation of his rights to a fair hearing in this matter leading to denying him justice in the matter and thus render the trial a nullity. Finally on this question I agree with the court below that notwithstanding having formulated the two issues suo motu and deciding them that the appellant’s claim all the same, has not been dismissed after striking out the 2nd respondent from the suit as the trial court has gone on to consider whether or not the appellant has discharged the burden of proof to entitle him to his claim and thereby nullify his dismissal on the ground that the 2nd defendant has not been clothed with the power to act on behalf of the 1st respondent (as its alter ego) in the processes taken in his dismissal and so to arrive at the inevitable conclusion that his dismissal from the employ of the 1st respondent is otherwise wrongful. I resolve this issue against the appellant.’]
.
.
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✓ DECISION:
‘Appeal dismissed.’
➥ FURTHER DICTA:
⦿ DETERMINING WHETHER A GROUND OF APPEAL IS OF LAW OR FACTS
I think that in the sense of the instant preliminary objection it is vital and appropriate in this regard to set out the seventeen grounds of appeal as I have done above with their prolix particulars of errors in law, even then for ease of reference and more so as the substantive ground of every ground of appeal has to be read and considered conjointly with their respective particulars of error to ascertain the real issue or complaint as encompassed in the said ground. In this regard the court is not to place undue reliance or emphasis on the form or in the manner the ground is couched as the gravamen or form of a ground of appeal for purposes of determining whether a ground is a ground of law or mixed law and facts or facts alone goes beyond the mere words used in couching or preferring the ground to the more serious question of identifying the real issue or the core of the complaint as encompassed in the ground. Clearly it is the real issue or complaint centrally encompassed in a ground on the backdrop of its particulars that decides whether the ground is one of law or not. Where, in short, the ground raises a complaint on an issue of law based upon accepted or admitted facts it is a ground of law requiring no leave of court but where the complaint or real issue is founded on disputed or unascertained facts then it is a ground of mixed law and fact requiring leave of court. See Section 233(3)(supra), and N.N.S. Co. Ltd. vs. Establishment Sima of Vaduz (1990) 7 NWLR (Pt.164) 526. The process of determining the substantive complaint of a ground as in this appeal has been accentuated by the fact, as can be seen from established authorities that the distinction between a ground of law and mixed law and fact may at times be so blurred or thin and so, difficult to ascertain with relative application of the established guiding principles as per settled authorities on the question. It is a matter that goes beyond a ground of appeal being simply labeled without more as a ground of law by the appellant. A hard scrutiny of the case as per Ehinlanwo v. Oke & Ors. (2008) 6-7 SC (Pt.1) 123 has established that a ground of law arises where the court has misunderstood the law or has misapplied the law to the proved and admitted facts. — C.M. Chukwuma-Eneh JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Christopher Mitchell Chukwuma-Eneh, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
