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

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

W.S.N ONNOGHEN JUSTICE, SUPREME COURT
BODE RHODES-VIVOUR JUSTICE, SUPREME COURT
NWALI S. NGWUTAJUSTICE, SUPREME COURT
MARY U. PETER-ODILI JUSTICE, SUPREME COURT
OLUKAYODE ARIWOOLA JUSTICE, SUPREME COURT
MUSA D. MUHAMMAD JUSTICE, SUPREME COURT
CLARA B. OGUNBIYI JUSTICE, SUPREME COURT
SC. 722/2015
BETWEEN:
CHIEF ISAAC EGBUCHU APPELLANT
AND
1. CONTINENTAL MERCHANT BANK PLC
2. C.M.B HOMES LIMITED…….. RESPONDENTS
3. NIGERIA DEPOSIT INSURANCE
(Joined as Liquidator of Continental Merchant Bank Plc.)

It has been firmly settled by decision of this court that hearing parties before an order of non-suit is made is mandatory. 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 be allowed to stand. So held the Supreme Court holden in Abuja in a unanimous ruling delivered by His lordship, Kudirat M. O. Kekere-Ekun, JSC, with his learned brothers Walter S. N. Onnoghen, Olukayode Ariwoola, Mary U. Peter-Odili and Nwali S. Ngwuta, JJSC concurring while allowing the appeal. The parties were represented by E. A. Oyebanji Esq, with M.O.A. Olawepo Esq and M.A. Olarewaju Esq, for the Appellant, A. O. Wahab Esq, for the Respondents.

JUDGMENT
This is an appeal against the judgment of the Lagos Division of the Court of Appeal delivered on the 18/7/2002 which set aside the judgment of the High court of Lagos State delivered on 15/12/1995 and made an order of non-suit.

The facts leading to the appeal are as follows: the appellant’s case is that he was appointed in 1981 by the 1st Respondent as Manager Personnel and Administration. He rose to the post of General Manager in the 1st Respondent and occupied the position until 24/11/1992. He further claimed that he was subsequently appointed as the Managing Director of the 2nd Respondent, a subsidiary of the 1st Respondent. The necessary statutory documents were filled at the Corporate Affairs Commission in Abuja. He was earning his previous salary and emolument as in the 1st respondent pending the approval of enhanced conditions of service by the 2nd respondent. It was his contention that before the Board of Directors of the 2nd respondent sat, the 1st respondent, by a letter dated 14th January 1993, informed him that his service were no longer required. It was his further contention that having failed to comply with the Memorandum and Articles of Association of the 2nd respondent and the Companies and Allied Matters Act, the respondents were liable to pay him damages for breach of contract.

It was the respondents’ position on the other hand that the appellant was merely an employee of the 1st respondent seconded to manage the 2nd respondent and that he was never appointed as Managing Director of the 2nd respondent. It was the respondents’ further contention that the 1st respondent was the appellant’s employer and that his appointment was lawfully terminated in accordance with the 1st respondent’s condition of service.

Clearly aggrieved, he instituted an action against the respondent for damages for breach of contract of employment. By paragraph 23 of his Amended Statement of Claim dated 20th March, 1995, he sought the following reliefs:

‘1. A DECLARATION that the plaintiff is still the Managing Director of the 2nd defendant.

2. A DECLARATION that the plaintiff as the Managing Director of the 2nd defendant company can only be removed as provided under Article 91 of the Article of Association of the 2nd defendant company duly registered at the Corporate Affairs Commission and in compliance with Section 262 of the companies and Allied Matters Decree 1990.

3. A DECLARATION that the 1st defendant’s letter of 14th January, 1993 written to the plaintiff by the 1st defendant is insufficient to remove the plaintiff as the Managing Director of the 2nd defendant company.

4. AN INJUNCTION restraining the defendant from validly appointing any person as the Managing Director of the 2nd defendant or from appointing anybody to act in any capacity which to all intents and purposes is that of the Managing Director of the 2nd defendant.

ALTERNATIVELY
N7, 051,588.80(Seven Million, Fifty-One Thousand, Five Hundred and Eighty-Eight Naira, Eighty Kobo).
The Respondents (as Defendants) counter claimed as follows:
An order compelling the plaintiff to deliver forthwith to the 1st Defendant the vehicles Peugeot 504 Registration Number: LA 3361AR.

N 1, 000.00 per day as special damages for alternative transportation at the rate of N 500.00 per car from 14th January 1993 until the date of the return of the vehicles to the 1st defendant.
N 100,000.00 general damages.
In the alternative, N 900,000.00 being the open market value of the said vehicles.

At the conclusion of the trial, the High Court entered judgment in favour of the appellant in the sum of N 5,610,099.00 as damages for the breach of contract and awarded the sum of N 484,909.00 in favour of the respondents as the value of the official cars attached to the plaintiff.

Being dissatisfied with the decision, the respondent herein appealed to the court below, which affirmed the decision of the trial court to the effect that the appellant’s employment was unlawfully terminated and that he was entitled to damages. It however expunged Exhibit P.26 the substratum of the appellant’s claim for damages collapsed. The lower court applied the provision of Order 37 of the Lagos State High Court (Civil Procedure) Rules 1994 in exercise of its power under section 16 of the Court of Appeal Act and made an order of non-suit. It is the order of non-suit that gave rise to the instant appeal.

At the hearing of the appeal on 8th December 2015, E.A Oyebanji Esq., leading Messrs M.O.A. Olawepo and M.A. Olarewaju adopted and relied on the appellant’s brief and his reply brief. He urged the court to allow the appeal, set aside the judgment of the court below and restore the judgment of the trial court on the ground that the appellant’s right to fair hearing was breached as he was not heard before the order of non-suit was made. A. O. Wahab, Esq., Learned counsel for the respondents adopted and relied on the respondents’ brief and urged the court to dismiss the appeal.

The appellant formulated three issues for the determination of this appeal thus:
Whether the learned justices of the court of appeal were right in ordering a non-suit in this case when the partied and/or their counsel were never invited to address the court on the prosperity or otherwise of such order. (Formulated from ground 1)
Whether in the circumstances of the case, the learned justices of the court of appeal were right when they held the appellant had not proved his entitlement to the damages claimed. (Formulated from Ground 3 and 4).
Whether the learned justices of the court of appeal were right in expunging Exhibit P. 26 from the record when the admissibility of Exhibit P. 26 was never a ground of appeal before the court and there was no prayer by the appellant (now respondent) requesting that Exhibit P.26 be expunged. (Formulated from ground 2).

The respondents distilled a single issue viz:
Were the learned justices of the court of appeal right to order a non-suit in this matter and should that order be upheld by the Supreme Court?

I shall adopt the issues distilled by the appellant in determining the appeal. It is pari materia with the sole issue formulated by the respondent. The determination of this issue would determine whether or not it is necessary to consider issues 2 and 3, as it raises the issue of fair hearing. This is because the law is trite that any proceedings conducted without fair hearing amounts to a nullity and is bound to be set aside. See Mfa &Anor. Vs. Inongha (2014) 1-2 SC (Pt. 1) 43 @ 72; Tsokwa Motors (Nig) Ltd vs. U.B.A Plc. (2008) All FWLR (Pt. 403) 1240@1255 A-B.

ISSUE 1
In support of this issue, learned counsel for the appellant referred to the judgment of the lower court at page 685 of the record of appeal wherein it relied on the provisions of Order 37 of the High Court of Lagos State (Civil Procedure) Rules 1994 and its powers under the section 16 of the court of appeal act in making the order of non-suit, and submitted that the court was enjoined by Order 37 to hear the parties before making such an order. He submitted that by placing reliance on the section 16 of the court of appeal act, which empowers the court of appeal to make any order, which the trial court is authorised to make, the court was then bound to comply strictly with the provisions of order 37. He also relied on section 36(1) of the 1999 constitution (as amended) and submitted that there was a breach of the appellant’s fundamental right to fair hearing.

He submitted that the appellant satisfactorily proved hiscase for damaged on thebalance of probabilities on the printed evidence before the court and that this is therefore not a case in which an order of non-suit ought to have been made.