Parties are entitled to be heard when non-suit is raised – Part 2



In the Supreme Court of Nigeria
Holden at Abuja
On Friday, the 13th Day Of November, 2015
Before Their Lordships

SC. 722/2015



(Joined as Liquidator of Continental Merchant Bank Plc.)

In reaction to the above submission, the learned counsel for the respondents relied on the case of Chief Maxwell Dokpiri Odi vs. Chief Harrison Iyala (2004) 8 NWLR (Pt. 875) 283 @ 312 D- F, wherein this court held that an order of non-suit is made where a plaintiff is unable to prove his whole case. That where there was failure of the trial judge to make proper and specific findings and an appellate court can neither do the same on the printed evidence, a re-hearing or non-suit, depending on the circumstances of the particular case may be ordered. He cited the case of Yesufu vs. A.C.B. Ltd. (1980) 1-2 SC 31.

He proceeded to make submissions in respect of Exhibit P. 26 relied upon by the appellant in prove of the claim for damages, its probative value and the applicable law on the standard of proof in the claim for damages. Thereafter he returned to the issue at hand in paragraph 3.26 of his brief wherein he contended that it is only desirable and not mandatory for a court to hear counsel before ordering a non-suit. He relied on the case of Yesufu Vs. A.C.B. Ltd. (supra) and submitted that in the event that the court does not uphold the order of non-suit, the only option is to dismiss the appellant’s case.

In reply on point of law, learned counsel for the appellant submitted that the contention of learned counsel for the respondents that the requirement to hear counsel before an order of non-suit is made is not mandatory, is misconceived and does not represent the current position of the law, he relied on the decision of this court in several cases, including: Dairo Vs. U.B.N. Plc & Anor. (2007) 7 SC (Pt.II) 97 @ 122 and Nsiegbe Vs. Mgbemena (2007) 4 – 5 SC 1; A.G. Leventis Plc Vs. Akpu (2007) 6 SC (Pt.I) 139 to the effect that where the court raises an issue suo motu, the parties must be given an opportunity to be heard before arriving at a decision based on the issue. He submitted that in the absence of a cross-appeal, it does not lie in the respondents’ mouth to urge the court to vary the judgement of the court below by ordering a dismissal of the appellant’s case.

Section 36 (1) of the constitution of the Federal Republic of Nigeria 1999 (as amended) provides: 36. (1) in the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.

On the meaning of fair hearing, this court in Inakoju vs. Adeleke (2007) 4 NWLR (Pt.1025) 423 @ 618 E-F, held thus: ‘The constitutional provisional mainly stems or germinates from two common law principles of natural justice. They are audi alteram partem and nemo judex in causa sua…… The meaning of the Latinism {audi alteram partem} is ‘hear the other side; hear both sides. No man should be condemned unheard.’…. what the rule or doctrine means is that the parties must be given equal opportunity to present their cases to the court and no party shouldbe given more opportunity or advantage in the presentation of his case.’

It is not in dispute that the issue of the appropriateness of an order of non-suit in the circumstances of this case never arose at the hearing of the appeal. However, in the course of its judgment, the court below held at page 685 of the record: ‘The implication of expunging Exhibit P.26 from the record holds awesome prospect of not proving the computation of damages awardable to the respondent in the sum of N7, 051, 588.80. However, I think the peculiar circumstances of the matter warrant resorting to Order 37 of the Lagos State High Court (Civil Procedure) Rules 1994 on non-suit in exercise of the powers vested in this court under Section 16 of the Court of Appeal Act. For ease of reference the said order is reproduced as follows; ‘The court may in any suit, with or without the consent of parties, non-suit the plaintiff, where satisfactory evidence shall not be given entitling either the plaintiff or defendant to the judgment of the Court.’

I am of the firm view that the order of non-suit as contemplated in the foregoing provision of Order 37 takes care of this matter. And I accordingly so order.

An order of non-suit will be made in the following circumstances: A. Where the plaintiff has not failed in toto or entirely to prove his case. B. Where the defendant is not in any event entitled to the court’s judgment: and C. Where no wrong or injustice to the defendant would be caused by such order. SEE: Olagbemiro Vs Ajagungbade III (1990) 3 NWLR (Pt.130) 37 @ 42; Akinsuroju Vs Joshua (1994) 4 NWLR (Pt.187) 542@ 590-551 H-A.

Now, the law is settled that a court is not entitled to raise an issue suo motu and decide on it without affording the parties an opportunity to be heard. This is because in doing so the court is seen to leave its exalted position as impartial arbiter and descend into the arena of conflict. SEE: KUTI Vs Balogun (1978) 1 SC 53 @ 60; Obawole Vs Williams (1996) 10 NWLR (Pt.477) 146; Stirling Civil Eng. (Nig.) Ltd. Vs Yahaya (2005) 11NWLR (Pt. 935) 181.

Appellant court is also not entitled to raise an issue not raised by either of the parties at the trial court or on appeal and base its decision thereon without affording the parties an opportunity to be heard in the case of: Olusanya Vs Olusanya (1983) 14 NSCC. Apart from this, Order 37 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 1994 contains a proviso, which the court below did not advert its mind to. The proviso is as follow: “Provided that the trial Judge gives the counsel to the parties the right to make submission about the propriety of the non-suit.”

As rightly submitted by learned counsel for appellant, in the exercise of its power under Section 16 of the Court of Appeal Act, the Court of Appeal is only empowered to make an order, which the trial court is authorised to make. Thus, where the trial court lacks jurisdiction to entertain a cause or matter or to make a particular order, the Court of Appeal would equally lack jurisdiction to do so. Order 37 Rule 1 of the Civil Procedure Rules clearly enjoin the court to hear the parties on the propriety of making an order of non-suit.

Contrary to the submission of learned counsel for the respondent, it has been firmly settled by decision of this court that hearing parties before an order of non-suit is made is mandatory. Also in Anyaduba Vs. N.R.T.C. Ltd (1992) 5 NWLR (Pt.243) 535 @ 566 F –G,His Lordship, Nnaemeka-Agu, JSC had this to say: “…there can no longer arise in Nigeria the question whether parties to a suit are entitled to be heard on the prosperity or otherwise of a non-suit before the order is made. It is true that the parties no longer by themselves elect or ask that they be non-suited. They normally come to court to urge the court to enter judgment in their favour. As it is so, ordering a non-suit is in effect making an order which none of the parties has asked for. In a country like Nigeria where right to fair hearing is a constitutional right under section 33 of the constitution, it would be unconstitutional as being contrary to the principles of fair hearing to make any substantive order which none of the parties in the litigation has asked for, no matter how benevolent it might seem. I therefore agree that for failure to invite the parties to address the court on the propriety of a non-suit before ordering it, the appeal was rightly allowed.”

In the light of all that I have said above, there is no doubt that the failure of the court below to invite the parties to address it on the issue of the non-suit was a breach of the appellant’s right to fair hearing as guaranteed by the section 36 (1) of the 1999 constitution (as amended).the judgment of the court below is therefore a nullity and cannot beallowed to stand. Accordingly, I resolve this issue in the Appellant’s favour.

Having resolved issue 1 in favour of the appellant, issues 2 and 3 no longer arise for the consideration of this appeal. The appeal has merit and is hereby allowed. The judgment of the court of appeal is hereby set aside.

The appeal is hereby remitted to the court of appeal to be heard by a different panel.
The parties shall bear their respective costs in the appeal.

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