“THE COURT HELD THAT IF LACK OF FAIR HEARING IS ESTABLISHED AS IN THIS CASE, THE RESULTANT EFFECT IS THAT, IT VITIATES THE AFFECTED PROCEEDINGS AND THE DECISION REACHED THEREBY, IS NULL AND VOID” In the Supreme Court of Nigeria Holden at Abuja On Friday, the 12th Day of May 1, 2017 Before Their Lordships Musa Dattijo Muhammad Clara Bata Ogunbiyi Kudirat Olatokunbo Motonmori Kekere-Ekun Ejembi Eko Sidi Dauda Bage Justices, Supreme Court SC.491/2014 Between Dr. H.M.G. Ezenwaji …….. Appellant And University of Nigeria & 4 ors……..Respondent Lead Judgement delivered by Hon. Ejembi Eko, JSC Facts On 17th July, 2000, a violent demonstration occurred in University of Nigeria Nsukka, to which an adhoc committee was set up by the Governing Council. The Appellant as Chairman of the Academic Staff Union of Universities (‘ASUU’), University of Nigeria Nsukka, found the composition of the committee uncomfortable. It was perceived that the committee was set up, to do a hatchet job against some members of the executive of ASUU. He therefore, took out a judicial review at the Federal High Court and was granted an interim order, restraining the authorities of the University, from further actions on the violent student demonstration. The Governing Council, however, went ahead to set up a committee of investigation, to perform similar role as that of the adhoc committee whose activities had been restrained. In reaction, the Appellant instituted a committal and disciplinary proceeding, against the Chairman of the Governing Council. However, as a result of the continuous proceeding of the Chairman of the committee of investigation (who was not made a party in the initial suit), the Appellant instituted the extant praying inter alia, that the activities of the committee of investigation flouting the initial Order of Court in the earlier suit was ultra vires, and sought an Order prohibit. The Respondents filed a motion on notice in the latter suit, praying for its dismissal on the ground that it constitutes an abuse of court process, and that the Court lacks the jurisdiction to entertain it. On the hearing date and prior to allowing the parties move the Objection, the learned trial Judge delivered a bench ruling, striking out the suit for being an abuse of court process in view of the initial suit between the “same parties” and same subject matter. The Appellant, being dissatisfied with the decision of the trial Court, appealed to the Court of Appeal. The grouse of the Appellant, was that the trial Court failed to hear them before striking out the suit, for being an abuse of court process. The Court of Appeal, though agreed that the Appellant was neither heard nor given an opportunity to be heard, it nevertheless, dismissed the appeal for lacking in merit and awarded costs of N5,000,000.00 against the Appellant. The Appellant further appealed to the Supreme Court. At the Supreme Court, the Respondents filed respectively, Notice of Preliminary Objection to the competence of the six grounds of appeal, on the ground that they were filed contrary to the provisions of Section 233(2) and (3) of the Constitution of the Federal Republic of Nigeria, 1999, which mandates the Appellant to seek and obtain leave of Court. Issue for Determination The core issue for determination by the Court was: Whether the Court of Appeal was right in affirming the decision of the trial Court which it held had breached the right of the Appellant to fair hearing? Arguments The Appellant submitted that proceedings conducted in breach of fair hearing rules, contained in the mandatory provisions of Section 36(1) of the 1999 Constitution, are null and void. He relied on copious judicial authorities in support of his submission – OTAPO v SUNMONU (1987) 2 NWLR (PT. 58) 587 at 605; NDUKANBA v KOLOMO (2005) 124 LRCN 479 at 502. For the Respondents, it was submitted that, the issue to be addressed is not whether the trial Court has the power or not, to stop an abuse of its process. Rather, the concern is, where a Defendant has raised an objection to the conduct of the Plaintiff as being an abuse of court process, is the Court obligated in such circumstance, to give the Plaintiff an opportunity to be heard before coming to its decision? Court’s Judgement and Rationale On the Preliminary Objection raised to the grounds of appeal, the Supreme Court called in aid, the provisions of Section 233(2) of the 1999 Constitution, on the circumstances under which appeals from the Court of Appeal lie to the Supreme Court as of right. The Court noted that any ground of appeal, which does not come within the parameters of the provisions, falls within the application of Section 233(3) of the 1999 Constitution, by which Leave of Court must be first sought and obtained, before the appeal can be filed. Their Lordships scrutinised the six grounds of appeal filed, and came to the conclusion that they all raised legal questions and so, Leave of Court was not required to file the appeal. The objection was thereby, overruled. Determining the issue raised in the main appeal, the Apex Court posed a question thus: what is the appropriate Order to make, or to be made, when it is indubitably clear that the proceedings of a Court or Tribunal established by law, were conducted in gross violation of the rules of fair hearing? Their Lordships observed that the Court of Appeal rightly held that, if lack of fair hearing is established, the resultant effect, is that it vitiates the proceedings affected and the decision reached in such circumstance is null and void. SALEH v MONGUNO (2003) 1 NWLR (PT. 801) 221. Relying on case of SALU v EGEIBON (1994) 6 SCNJ 223, the Court also restated that hearing could not be said to be fair if any of the parties is refused a hearing or denied the opportunity to be heard. Guided by the foregoing apt principle of law, the Court of Appeal, nevertheless, veered off the established templates. The Supreme Court pointed out that rules of fair hearing are not intended to achieve another rule which says that the end justifies the means. On the contrary, the rules of fair hearing are procedural, but fundamental rules which every court established by law, is enjoined to observe in the determination of the civil rights and obligations of every person appearing before it in litigation. Every Court is enjoined before arriving at a decision in every dispute inter parties, to observe the rules of fair hearing. It was noted that Section 36(1) of the 1999 Constitution provides the procedure or means to attain the ends of justice. The requirement of audi alteram patem which enjoins the decision maker to hear both sides before coming to a decision, means that he must not take a decision that will affect a party, without first giving such a person an opportunity to be heard. The test of fair hearing is objective. In ISIYAKU MOHAMMED v KANO N.A (1968) All NLR 424 at 426, it was held that a fair hearing must involve a fair trial which consists of the whole hearing; the test of a fair hearing is the impression of a reasonable person who was present at the trial whether, from his observation, justice was done and seen to have been done in the case. The Court held that if lack of fair hearing is established as in this case, the resultant effect is that, it vitiates the affected proceedings and the decision reached thereby, is null and void. Further, if the proceedings were null and void as observed by the Court of Appeal, it necessarily follows that they cannot bind anyone. They are incapable of giving rise to any rights or obligations, under any circumstance. ADEFULU v OKULAJA (1996) 9 NWLR (Pt. 475) 668. Further, Their Lordships opined that from the moment the Court of Appeal declared the proceedings of the trial Court null and void, having been conducted in violation of the rules of fair hearing, the said proceedings were deemed wiped out. There was no cross-appeal to warrant a contrary posture of the Court of Appeal to the effect that “there cannot be a breach of fair hearing where a litigant has adopted the wrong procedure in pursuit of justice” Having nullified the proceedings of the trial Court, the Court of Appeal had become functus officio and incapable in law, to render Orders to the contrary in the same judgement. It lacked the jurisdiction to hold contrariwise that, because the Appellant had adopted a wrong procedure, amounting to abuse of process, they could not be heard to complain that their right to fair hearing had been violated. On that note, the Supreme Court consequently, resolved the issue formulated in favour of the Appellant. The proceedings of 20th November, 2000 as well as the Orders made, were set aside. The status quo existing immediately before the proceedings and Orders therein were restored, and the suit was remitted to the Federal High Court, Enugu, to be heard by a Judge other than the trial Judge. Appeal Allowed. Representation: Ejike Ezenwa, Esq. with Jacinta Okafor (Mrs.) for the Appellant Nwachukwu Ibegbu, Esq. for the Respondents Reported by Optimum Publishers Limited (Publishers of the Nigerian Monthly Law Reports (NMLR))]]>

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