24/09/2024
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MOHAMMED ATIKU-ABUBAKAR v. MISS UMMI FATIMA BOLORI
Legalpedia Citation: (2024-04) Legalpedia 39975 (CA)
Suit Number: CA/LAG/CV/902/2022
Areas Of Law
Appeal, Constitutional Law, Evidence, Family Law, Practice And Procedure
Summary of Facts
The parties were couples who got married under the Sharia’h law sometimes in 2007. The marriage hit the rock and was eventually dissolved in 2011. However, there were two (2) issues from the relationship; a boy and a girl, both aged 6 and 8 years respectively, who, at the time of the resulting litigation, were in the custody of the Appellant, albeit, by default. The Respondent felt that the children were better kept in her custody so as to be able to give them motherly love that no other woman can give. When demands for the children to be returned to the Respondent were not heeded, an action was instituted in the trial Magistrate Court, the Family Court, wherein the Respondent sought for custody of the children as well as their maintenance by the Appellant, among other reliefs.
On 1st November, 2017, in the proceedings before K. B Ayeye, (Mrs.), the Chief Magistrate/Chairman, the Family Court of the Magistrate Court of Lagos State, Lagos Division, hereinafter called the ‘Family Court’ or the ‘Court of first instance’, counsel to the Respondent herein; the Applicant in the matter before the Family Court, objected to the appearance of the learned silk, Olasupo Sasore, SAN, in that proceedings, for the instant Appellant, who was the Respondent in the matter before the Family Court. The objection was premised on the provisions of Rules 3 and 6 of the Senior Advocates of Nigeria (Privileges and Functions) Rules, which was made pursuant to Sections 2(1) and 7(1) of the Legal Practitioners Act, 1975.
The Appellant joined issues with the Respondent in the said objection, insisting that the law entitles counsel to the Appellant the right of appearance in Court, by virtue of the provision of Section 9 of the Magistrate Court Law of Lagos State, 2009,
In a ruling, the Family Court sustained the objection of the Respondent, holding that the learned silk, counsel for the Appellant, has no right of appearance before the Family Court and cannot therefore appear for the Appellant in the matter.
The Appellant, being aggrieved by the said decision, filed a Notice of Appeal on 19th March, 2018, at the Registry of the High Court of Lagos State (the lower Court), wherein he sought the review and setting aside of the said ruling of the Family Court and setting down the matter for hearing by another Magistrate. The lower Court dismissed the appeal and affirmed the decision of the Family Court.
Further aggrieved by the decision, the Appellant filed the instant appeal.
Held
Appeal dismissed
Issues For Determination
Ø Whether the right to fair hearing includes the right to (the) choice of counsel?
Ø Whether the lower Court was right to rely on the case of The Registered Trustees of ECWA Church v. Ijesha?
Ø Whether an Act of the National Assembly can regulate the practice and procedure in the Magistrate Court of Lagos State?
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Rationes
REPLY BRIEF – THE PURPOSE OF A REPLY BRIEF
The purpose of a Reply Brief is not to beef up an Appellant's position as contained in his Brief of Argument; rather, it is to respond to new issues raised and canvassed in the Respondent's Brief which were not touched or covered by the Appellant's main Brief of Argument. My noble Lords, I would restate for the umpteenth time, that a Reply Brief is not a repair kit to put right any lacuna or error or omission in the Appellant's Brief of Argument. See Adekunle & Anor vs. Governor of Lagos State (2020) LPELR-49587 (CA); Alhaji Salihu vs. Alhaji Abdul Wasiu (2016) LPELR-26062) (SC); A.B.C Transport vs. Omotoye (2019) LPELR-47829 (SC). – Per M. I. Sirajo, JCA
FAIR HEARING – WHAT THE RIGHT TO FAIR HEARING IMPLIES
There is no mincing words that a right to fair hearing is the entitlement of every litigant who appears before a Court of law. The doctrine relates equally either to the Claimant or to the Defendant or to an accused person in a criminal trial.
The right to fair hearing implies that all the parties to an action before a Court must be given equal opportunity to present their case the best way they know, either in person or through their counsel. See: INEC vs. Musa (2003) LPELR-24927; Carnation Registrars Ltd v President NICN (2023) LPELR-60102(SC)
In Arije vs. Arije & Ors (2018) LPELR-44193 (SC), the Supreme Court, on the subject, pointedly restated the law thus;
Now the right to fair hearing is one of the fundamental rights guaranteed in Chapter IV of the 1999 Constitution. See Section 35 (1) thereof. It is one of the twin pillars of natural justice which support the Rule of Law. The pillars are an indispensable part of the process of adjudication in any civilized society. They are: audi alteram partem (hear the other side i.e. one must be heard in his own defence before being condemned) and nemo judex in causa sua (no one may be a judge in his own cause). See Akpamgbo-Okadigbo v. Chidi (2015) LPELR-24564 (SC) 1 @ 39 E - F. – Per M. I. Sirajo, JCA
FAIR HEARING – THOSE ENTITLED TO FAIR HEARING
There is no mincing words that a right to fair hearing is the entitlement of every litigant who appears before a Court of law. The doctrine relates equally either to the Claimant or to the Defendant or to an accused person in a criminal trial.
The right to fair hearing implies that all the parties to an action before a Court must be given equal opportunity to present their case the best way they know, either in person or through their counsel. See: INEC vs. Musa (2003) LPELR-24927; Carnation Registrars Ltd v President NICN (2023) LPELR-60102(SC)
In Arije vs. Arije & Ors (2018) LPELR-44193 (SC), the Supreme Court, on the subject, pointedly restated the law thus;
Now the right to fair hearing is one of the fundamental rights guaranteed in Chapter IV of the 1999 Constitution. See Section 35 (1) thereof. It is one of the twin pillars of natural justice which support the Rule of Law. The pillars are an indispensable part of the process of adjudication in any civilized society. They are: audi alteram partem (hear the other side i.e. one must be heard in his own defence before being condemned) and nemo judex in causa sua (no one may be a judge in his own cause). See Akpamgbo-Okadigbo v. Chidi (2015) LPELR-24564 (SC) 1 @ 39 E - F. – Per M. I. Sirajo, JCA
FAIR HEARING – THE SCOPE OF THE CONCEPT OF FAIR HEARING
The concept of fair hearing encompasses not only the principle of natural justice in the narrow technical sense just referred to, but in the wider sense of what is right and fair to all concerned and is seen to be so. See: Unibiz Nig. Ltd. Vs Commercial Bank Credit Lyonnais Ltd. (2003) 6 NWLR (Pt.816) 402. Fair hearing requires that the trial must be conducted according to all applicable legal rules with a view to ensuring that justice is done to all parties before the Court. The law is trite that any proceedings conducted in breach of the right to fair hearing are a nullity and liable to be set aside. See Ariori Vs Elemo (1983) 1 St 81, Kotoye Vs C.B.N (1989) 1 NWLR (Pt. 98) 419. It is equally trite that where the principle of natural justice is violated, it does not matter whether if the proper thing had been done, the decision would have been the same, the proceedings would still be null and void. See Salu vs. Egeibon (1994) 6 NWLR (Pt. 348) 23, Adigun vs. A.G. Oyo State (1987) 1 NWLR (Pt. 53) 678, Bamgboye vs University of llorin (1999) 10 NWLR (Pt. 622) 290. All the authorities referred to above underpin the importance attached to the observance of the principles of natural justice in any adjudication. It follows that if the appellant's contentions are well founded, and the lower Court raised certain issues suo motu without the benefit of any input from the parties before reaching its decision, the entire proceedings, no matter how well conducted would amount to a nullity.
It is well settled that fair hearing must involve a hearing that is in compliance with the principles of natural justice and must involve a fair trial which consists of the whole hearing. The Apex Court in Ardo vs. INEC & Ors (2017) LPELR-41919 (SC), added that "the right to fair hearing does not stop with the parties, being present in Court, it is a right to be heard at every material stage of the proceedings."
See also Long-term Global Capital Ltd & Anor vs. Stanbic IBTC Bank Plc & Anor (2022) LPELR-59027 (SC). – Per M. I. Sirajo, JCA
FAIR HEARING – WHERE THE RIGHT TO FAIR HEARING IS BREACHED
The concept of fair hearing encompasses not only the principle of natural justice in the narrow technical sense just referred to, but in the wider sense of what is right and fair to all concerned and is seen to be so. See: Unibiz Nig. Ltd. Vs Commercial Bank Credit Lyonnais Ltd. (2003) 6 NWLR (Pt.816) 402. Fair hearing requires that the trial must be conducted according to all applicable legal rules with a view to ensuring that justice is done to all parties before the Court. The law is trite that any proceedings conducted in breach of the right to fair hearing are a nullity and liable to be set aside. See Ariori Vs Elemo (1983) 1 St 81, Kotoye Vs C.B.N (1989) 1 NWLR (Pt. 98) 419. It is equally trite that where the principle of natural justice is violated, it does not matter whether if the proper thing had been done, the decision would have been the same, the proceedings would still be null and void. See Salu vs. Egeibon (1994) 6 NWLR (Pt. 348) 23, Adigun vs. A.G. Oyo State (1987) 1 NWLR (Pt. 53) 678, Bamgboye vs University of llorin (1999) 10 NWLR (Pt. 622) 290. All the authorities referred to above underpin the importance attached to the observance of the principles of natural justice in any adjudication. It follows that if the appellant's contentions are well founded, and the lower Court raised certain issues suo motu without the benefit of any input from the parties before reaching its decision, the entire proceedings, no matter how well conducted would amount to a nullity.
It is well settled that fair hearing must involve a hearing that is in compliance with the principles of natural justice and must involve a fair trial which consists of the whole hearing. The Apex Court in Ardo vs. INEC & Ors (2017) LPELR-41919 (SC), added that "the right to fair hearing does not stop with the parties, being present in Court, it is a right to be heard at every material stage of the proceedings."
See also Long-term Global Capital Ltd & Anor vs. Stanbic IBTC Bank Plc & Anor (2022) LPELR-59027 (SC). – Per M. I. Sirajo, JCA
FAIR HEARING – EFFECT OF THE BREACH OF THE RIGHT TO FAIR HEARING
Since a proven case of a breach of the right to a fair hearing would nullify any proceedings in its entirety, no matter how well same is conducted, such allegation must therefore be established with credible proof thereof, this is in view of the settled law that an expression of mere rhetoric or empty verbalism would not amount to a fair hearing or the breach of it rather, it is a fundamental right of a citizen guaranteed in Chapter IV of the Constitution of the Federal Republic of Nigeria (CFRN), 1999, as amended. It is equally apt to note that a fair hearing or the lack of it cannot be construed outside the facts and circumstance of a case, with the burden on a party alleging the breach to show clearly that the said right was violated or breached. See:Gbadamosi vs. Dairo (2007) 3 NWLR (Pt.1021) 282 SC.
In the same vein, this Court, in Philips Ade-Ojo vs. Peter Ojo & Anor. (2021) LPELR-56205(CA), at (Pg. 31 paras. B), held thus;
"The right to a fair hearing is a constitutionally guaranteed right, observance of which gives validity to any legal proceeding. Section 36 (1) of the Constitution of the Federal Republic of Nigeria which encapsulates the right to a fair hearing provides:
"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."
Fair hearing within the meaning of the above-quoted provisions means a trial conducted according to all the legal rules and procedures to ensure that justice is done to the parties." – Per M. I. Sirajo, JCA
FAIR HEARING – HOW FAIR HEARING IS CONSTRUED
Since a proven case of a breach of the right to a fair hearing would nullify any proceedings in its entirety, no matter how well same is conducted, such allegation must therefore be established with credible proof thereof, this is in view of the settled law that an expression of mere rhetoric or empty verbalism would not amount to a fair hearing or the breach of it rather, it is a fundamental right of a citizen guaranteed in Chapter IV of the Constitution of the Federal Republic of Nigeria (CFRN), 1999, as amended. It is equally apt to note that a fair hearing or the lack of it cannot be construed outside the facts and circumstance of a case, with the burden on a party alleging the breach to show clearly that the said right was violated or breached. See:Gbadamosi vs. Dairo (2007) 3 NWLR (Pt.1021) 282 SC.
In the same vein, this Court, in Philips Ade-Ojo vs. Peter Ojo & Anor. (2021) LPELR-56205(CA), at (Pg. 31 paras. B), held thus;
"The right to a fair hearing is a constitutionally guaranteed right, observance of which gives validity to any legal proceeding. Section 36 (1) of the Constitution of the Federal Republic of Nigeria which encapsulates the right to a fair hearing provides:
"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."
Fair hearing within the meaning of the above-quoted provisions means a trial conducted according to all the legal rules and procedures to ensure that justice is done to the parties." – Per M. I. Sirajo, JCA
FAIR HEARING – WHETHER THE RIGHT TO CHOICE OF COUNSEL IS PART OF FAIR HEARING
It must be stated unequivocally that the right of a litigant to fair hearing as enshrined in Section 36 of the CFRN, 1999, entails the right to choose his counsel who, in his opinion, would best project his case, either in the prosecution of it or in the defence of same. This much has been judicially settled by a long line of decided authorities, mostly cited supra by counsel to the Appellant.
The Supreme Court stated the law succinctly that parties are entitled to counsel of their choice without interference neither from the Court nor any other party and that a party having exercised such right cannot be "gauged" or questioned for any reason, as it is only the client and none other person, not even the Court can enquire into his counsel’s authority once he has announced his appearance. See Awara Biokpomabo Festus vs. African Action Congress & Ors. (2020) 4 NWLR (Pt.1713) 105 SC and also the decision of this Court in Daily Times vs. IGP & Ors. (2021) LPELR-54633 (CA). – Per M. I. Sirajo, JCA
SENIOR ADVOCATE OF NIGERIA (SAN) – WHETHER A ‘SAN’ CAN APPEAR IN ALL COURTS
…It is my respectful view, flowing from the combined construction of the foregoing provisions, that it is the contemplation of the drafters of the law that the rank of a Senior Advocate of Nigeria is to appear in any other Court or Tribunal with powers not less than those of a High Court, this is in addition to those listed in the preceding rules, to wit; the Supreme Court of Nigeria, the Court of Appeal, the Federal High Court, any State High Court. – Per M. I. Sirajo, JCA
FAIR HEARING – CONDUCT OF COURTS TO THE CLAIM OF BREACH OF FAIR HEARING
It is not uncommon; quite prevalent and fashionable it has become, for irate litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the Court of first instance or Court below. It is not enough for a party alleging such a breach to merely wave the banner of fair hearing and expect the Court to jump to attention thereon. The facts of his case must show that the said right was indeed violated. See: Adebayo vs. A.G Ogun State (2008) 7 NWLR (Pt.1085) 201. – Per M. I. Sirajo, JCA
S. 36(6)(C) CFRN – THE AIM OF S.36(6)(C) CFRN
The provision of said Section 36 (6)(c) of 1999 Constitution says:
Every person who is charged with a criminal offence shall be entitled to defend himself in person or by a legal practitioner of his own choice.
I am of the view that the aim of the constitutional provision cited above, is to confer a right on an accused person, in criminal proceedings, to have a legal representative of his own choice, and to protect him from having someone foisted on him by the prosecutor, Government, or another person. See: Awolowo vs. Sarki & Anor (1966) LPELR-25290(SC). – Per M. I. Sirajo, JCA
FAIR HEARING – THE PURPOSE OF THE CONSTITUTIONAL PROVISION ON FAIR HEARING
The Supreme Court noted that litigants with bad cases, in most of the times, make recourse to the constitutional provision of fair hearing in order to hoodwink the adverse parties and even the Court. This is with a view to derail the wheel of justice and mislead the Court away from the live issue in the litigation.
The Apex Court in Okeke v. Uwaechina (2022) LPELR-57291 (SC) restated the settled law, on such litigants, thus;
… they make the defence in most inappropriate cases because they have nothing to canvass in their favour. The fair hearing provision in the Constitution is the machinery or locomotive of justice, not a spare part to propel or invigorate the case of the user. It is not a causal principle of law available to a party to be picked up at will in a case and force the Court to apply to his advantage. It is a formidable and fundamental constitutional provision available to a party, who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants, who have nothing useful to advocate in favour of their case, leave the fair hearing constitutional alone because it is not available to them just for the asking." Per AUGIE, JSC (Pp. 26-27) – Per M. I. Sirajo, JCA
FAIR HEARING – THE PROPER APPLICATION OF THE DOCTRINE OF FAIR HEARING BY PARTIES
Lastly on this issue, the Apex Court laid the matter of incessant complaint of breach of fair hearing by litigants to rest in its decision in Orugbo vs. Una (2002) LPELR-2778(SC), where per Niki Tobi, JSC (of blessed memory), postulated:
Fair hearing is not a cut-and-dry principle which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based and must be based on the facts of the case before the Court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless, or completely dead outside the facts of the case. – Per M. I. Sirajo, JCA
SAN – WHETHER A SAN HAS A RIGHT OF AUDIENCE IN AN AREA COURT
In the case of The Registered Trustees of the ECWA Church vs. Ijesha, supra, this Court held that a Senior Advocate of Nigeria has no right of audience in the Upper Area Court, being an inferior Court, the decision was arrived at by the combined construction of Rules 2, 3, 4 & 6 of the Senior Advocate of Nigeria (Privileges and Functions) Rules made pursuant to Section 5 (7) of its enabling law, the Legal Practitioners Act. – Per M. I. Sirajo, JCA
SAN RULES – WHETHER SANS ARE BOUND BY THE OBLIGATIONS THAT ARE ATTACHED TO THEIR POSITIONS/TITLES
It is my considered view that the SAN’s Rules, the relevant part of which were reproduced in the preceding portion of this judgment, were made to regulate the conduct of the practice of the holders of the prestigious rank of Senior Advocate of Nigeria, and the holders are bound by same.
I am aware that the rank is bestowed on deserving practitioners mainly on privileged grounds, whose status entitles them to some privileges and prestige. I cannot see or imagine holders of such privileged ranks turning around to bemoan obligations attached thereto. See: Attorney-General of Rivers State vs. Attorney-General of Akwa Ibom State (2011) 8 NWLR (Pt.1248) 31; Chanchangi Airlines (Nig.) Ltd vs. AP Plc (2015) 4 NWLR (Pt.1449) 256. – Per M. I. Sirajo, JCA
ACADEMIC ISSUES – CONDUCT OF COURTS TO APPEALS DESIGNED TO ANSWER ACADEMIC ISSUES/QUESTIONS
The position of the Court has been sufficiently glaring on moot issue like the instant one. This Court, in Akuma vs. Ezikpe, supra, cited by the Appellant, stated thus;
Every appeal must be for the purpose of righting a wrong done to the appellant by the decisions appealed from. The Courts must discourage and have often discouraged appeals designed only to answer academic questions that do not in any way advance the appellant's cause. Even if this appeal is resolved in the appellant's favour no practical advantage will be gained by him in the case between the respondent ….
The instant appeal, to say the least, is frivolous to the extreme. The Appellant had abdicated his role as a parent to the children of the marriage in issue and was on the pursuit of mere otiose issue. – Per M. I. Sirajo, JCA
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STATUTES MENTIONED
1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Senior Advocates of Nigeria (Privileges and Functions) Rules
3. Legal Practitioners Act, 1975.
4. Magistrate Court Law of Lagos State, 2009
5. Child Rights Act
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