Effect of Failure of Court to Pronounce on all Issues
Facts
The 1st Appellant, a limited liability company, while the 2nd Appellant is its Chairman, and Chief Executive Officer. In April 2007, the Respondent granted an overdraft facility in the sum of N600,000,000.00 to the 1st Appellant for a tenor of 365 days, with an option of roll-over. In May and July 2007, two additional overdraft facilities in the sum of N400,000,000.00 and N250,000,000.00 respectively, were granted to the 2nd Appellant for tenors of 365 days with options of roll-over.
It was the case of the Appellants that the overdraft facilities were liquidated, but the Respondent refused to release their shares pledged for the facilities. Thus, they instituted and action at the Federal High Court, Lagos in Suit No: FHC/L/CS/1491/2009, seeking, inter alia, a declaration that the Respondent was indebted to the Appellants in the sum of N170,304,096.79 being the shortfall arising from the unconscionable and negligent sale of 28,745,400 units of Guarantee Trust Bank shares owned by the Appellants; a declaration that the Respondent is indebted to the Appellants in the sum of N35,725,18.87, being the outstanding excess of interest charges debited to the Appellants’ accounts by the Respondent; a declaration that the Respondent is also indebted to the 1st Appellant in the sum of N245,729.49 being the cash deposit which was not credited to the 1st Appellant’s account on 2/11/2008, with interest at the rate of 16% per annum from 21/10/2009 when an official demand letter was sent to the Respondent in respect thereof and till date; a declaration that the Appellants are entitled to offset their indebtedness to the Respondent from the sums enumerated earlier, and that they had fully discharged all their obligations to the Respondent. The Appellants also sought an order of court directing the Respondent to release to them, their pledged shares and every other document relating to the shares. In the alternative, they sought an order of court for proper reconciliation of the Appellants’ accounts, prior to and after the merger of the accounts to determine the actual indebtedness of the Appellants (if any).
The Respondent, in its defence, averred that the Appellants had not liquidated the facilities at the end of the tenure, further to which the Respondent granted an extension for them to liquidate the facilities. The 2nd Appellant subsequently applied that the facility granted to him, be merged with that of the 1st Appellant.
At the end of the trial, the court found for the Appellants. The court held that, any outstanding due to the Respondent was fully offset by the loss suffered by the Appellants from the manner the Respondent handled the sale of their shares and from the excess bank charges alluded to by the Appellants, and by the “lost and found” deposit in the sum of N212,700.00 plus interest accrued. The court thereby, directed a release of the Appellants’ shares and certificates held as lien for the overdraft facilities. General damages in the sum of N2.5 billion was also awarded in favour of the Appellants for breach of contract, giving inadequate consideration to customers’ interests, and loss of business opportunity to the Appellants.
Upon the application of the Appellants as Judgement Creditors, the court granted a Garnishee Order Nisi on 7/12/2010 attaching the funds of the Respondent in six banks listed as Garnishees. The Respondent applied to set aside the Order Nisi, and to dismiss the garnishee proceedings for failure to comply with Order IV Rule 1(2) of the Judgement (Enforcement) Rules of the Sheriffs and Civil Process Act, which prohibits issuance of any process of execution of the judgement before the expiration of three days, from the date of judgement, except with the leave of court. The trial court, however, dismissed the Respondent’s application, and made the Garnishee Order Absolute on 9/2/2011.
The Respondent appealed the Garnishee Order Nisi and Absolute, in Appeal Nos: CA/L/245/2011 and CA/L/245A/2011. The parties had agreed that these appeals would be adjourned, to await the outcome of the decision of the Supreme Court on the substantive suit in SC.535/2013. The said appeal was dismissed by the Supreme Court, on 30/10/2019. Consequent upon the foregoing, the Appellants filed an application at the Court of Appeal on 30/10/2019 seeking an order of court dismissing the appeal in CA/L/245/2011 (Garnishee Order Nisi) on ground that there was an agreement for the appeal to abide the final judgement of the Supreme Court in SC.535/2013. The Court of Appeal held that the appeal on the Garnishee Order Nisi made by the trial court, relates to the steps taken by the court in the conduct of the proceedings. The appeal is different, and did not touch on the main appeal. The application was thereby, dismissed. The Appellants therefore, appealed the decision to the Supreme Court.
The Respondent filed a Preliminary Objection challenging the competence of the appeal and jurisdiction of the court to entertain same, on the ground that the original Notice of Appeal contained a sole ground which is of mixed law and facts, and which the Appellants did not seek and obtain leave of court before filing.
Issues for Determination The issues in the main appeal were:
1. Whether the refusal and/or neglect of the Court of Appeal to specifically consider and pronounce on the issue relating to the incompetence of the Counter-Affidavit filed by the Respondent, did not amount to denial of the Appellants’ constitutional right to fair hearing.
2. Whether the Court of Appeal was in error when it dismissed the Appellants’ application on the basis that the said application was aimed at depriving the Respondent of its constitutional right of appeal against the Garnishee Order Nisi, which emanated from the garnishee proceedings, which was adjudged different and distinct from the main suit from which the judgement of the Supreme Court at the material time emanated.
Arguments
Arguing the first issue, the Appellants submitted that the settled position of law is that courts are under an obligation to properly consider and pronounce on all issues raised by parties
before it, to avoid miscarriage of justice and/or denial of fair hearing – UZUDA v EGIGAH & ORS. (2009) 15 NWLR (Pt. 1163) 1. Counsel argued that the lower court breached the Appellants’ rights to fair hearing, when it failed to consider their contention that the Respondent’s Counter-affidavit was incompetent. He posited further that, the court had the duty to consider their objection to the various paragraphs of the Respondent’s Counter-affidavit which contained extraneous matters. The Appellants urged the Supreme Court to invoke its inherent jurisdiction, to consider the objections raised by the Appellants to the Respondent’s Counter-affidavit. Contending otherwise, counsel for the Respondent submitted that the alleged refusal of the lower court to specifically consider and pronounce on the competence of the Respondent’s Counteraffidavit was not fundamental or fatal to the decision to warrant setting aside same, as the omission did not occasion any miscarriage of justice or breach of the Appellants’ right to fair hearing –
BOKO v NUNGWA (2019) 1 NWLR (Pt. 1654) 295 at 425.
Counsel argued further that the Respondent’s Counter-affidavit at the lower court, did not offend Section 115(2) of the Evidence Act.
On issue two, the Appellants submitted the Respondent had voluntarily agreed that its appeal against the Garnishee Order Absolute, made by the court of first instance should abide the final decision of the Supreme Court in SC.535/2013; the Respondent thereby, waived its right to continue with the appeal before the Court of Appeal, following the judgement of the Supreme Court aforesaid. Counsel argued that where parties have agreed to abide the result of another suit on appeal, the losing party should not be allowed to escape through the back door by reneging from its voluntary agreement to re-litigate on that issue – ELIZABETH MABAMIJE v HANS WOLFGANG OTTO (2016) 13 NWLR (Pt. 1529) 171.
Responding to the submissions above, counsel argued for the Respondent that by law, a party who is aggrieved with a decision of court has a right of appeal to an appellate court; any attempt to deprive the aggrieved party of his right of appeal would be unconstitutional and a denial of fair hearing – PDP v SHERIFF & ORS (2017) LPELR-42736 SC. He argued that the agreement of parties to await the decision of the Supreme Court in SC.535/2013 did not amount to waiver of its constitutional right to appeal, as the Court of Appeal ought to determine the appeal one way or the other in the interest of justice. This was especially so, as the two appeals related to different subject-matters and considering the sui generis nature of garnishee proceedings and its regulatory provisions.
Court’s Judgement and Rationale
(Lead Judgement delivered by Honourable Abdu Aboki, JSC)
The Supreme Court resolved the Preliminary Objection first, holding that a Ground of Appeal should not be considered in isolation of its particulars to understand its purports. The line between ground of law simpliciter and one of mixed law and fact, is thin. In the classification of Grounds of Appeal, it does not matter whether the Appellant labelled it one of law, fact or mixed law and fact, what the court ought to do is to examine the particular ground together with its particulars, if any, as a whole – CBN & ANOR. V OKOJIE & ORS. (2002) LPELR-836 (SC). The court considered the Ground of Appeal in question and its particulars, in coming to the decision that it was a ground of law. Their Lordships held that when the case on appeal has to do with whether the lower court considered all the issues brought before it, it amounts to a denial of fair hearing and is clearly a question of law within the ambit of Section 233(2) of the 1999 Constitution, which can be appealed as of right.
Deciding the issue of fair hearing raised by the Appellants, the Apex Court held that, fair hearing implies that all the parties to an action must be given equal opportunity to present their case before the court the way they know best. The other aspect of fair hearing is that a court in deciding a case, must consider all the issues presented before it by all the parties. The inability of the court to consider the case put forward by the parties in writing the judgement, amounts to denial of fair hearing. In HONEYWELL FLOUR MILLS PLC v ECOBANK (2018) LPELR-45127 (SC), the Supreme Court held that a court of law should always make pronouncement on, or must determine all the issues raised before it by parties. However, the attitude of appellate court where a court does not consider all issues raised before it, is not to inexorably set aside the decision. Failure to consider all issues raised by court will only amount to denial of fair hearing, where such omission occasioned a miscarriage of justice. In this case, the questions determined by the court below encompassed the issue of incompetence of the Counter-affidavit; and so, there was no miscarriage of justice occasioned by the omission to make pronouncement on the objection specifically.
On the second issue, the Apex Court held that in law, waiver must be in respect of a private right and for benefit of a particular person; that is in contradistinction to a public right which one person cannot waive, because it is intended for public good. Thus, statutory provision for the benefit of a person can therefore be waived, because it confers a private right or protects a private interest. A right to appeal, being a private right, can be waived. From the record of appeal however, what was requested for was an adjournment of the appeal at the Court of Appeal to await the decision of the Supreme Court in SC.535/2013.
Regarding the issue of competence of the Respondent’s appeal in view of the provisions of Section 14 of the Court of Appeal Act 2004, the Apex Court held that a determination of the competence of the Respondent’s appeal pending at the Court of Appeal was premature, at this stage. The competence or otherwise of the appeal, ought to be determined by the Court of Appeal.
On the argument that the appeal challenging the Garnishee Order Nisi had become academic, their Lordships decided that a case on appeal becomes academic when it would bring no benefit to any of the parties, or where there is no live issue in the claim. A determination of whether the garnishee proceedings was in flagrant violation of the mandatory provisions of Order IV Rule 1(2) of the Judgement (Enforcement) Rules of the Sheriffs and Civil Process Act, is a live issue which must be decided one way or the other.
Appeal Dismissed.
Representation
Chief F.O. Fagbohungbe, SAN with Abayomi Adeniran for the Appellants.
“…. the attitude of appellate court where a court does not consider all issues raised before it, is not to inexorably set aside the decision. Failure to consider all issues raised by court will only amount to denial of fair hearing, where such omission occasioned a miscarriage of justice”
D.D. Dodo, SAN with Samson Eigege, Adewale Adegboyega, Nkechi Udeze and Christian Fehintola for the Respondents.
Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)