A Court Must Maintain its Exalted Role as an Impartial Arbiter
Can an appellate court refuse the reliefs of a party on a different ground from that adduced by a trial court without giving parties a chance to be heard? This question is best answered in the decision of this court where it was stated that – “The settled position of the law…is 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”. Facts The dispute leading to this appeal began in 1993. That year, according to Bola Ominiyi (“the Appellant”), he bought a parcel of land with a completed building of 4 flats (“the disputed property”) from Jacob A.A. (“the Respondent”) at a price of N350, 000. A sale agreement was executed on 9 October 1993, followed by a ratification document confirming the sale. Thereafter, signed letters of introduction and notices to quit were written to the tenants of the building whom the new owner was introduced to. Problems however arose when the Respondent failed to obtain a Governor’s consent to effectively transfer title in the property to the Appellant. This resulted in the institution of an action at the High Court of Osun State on 3rd April 1995 in order to secure a specific performance of the sale.
In the action, the Respondent denied knowing the Appellant before the transaction, or selling the disputed property to him. According to him, when he was in need of a loan, he approached one Mr. Adebagbo. In order to secure the loan, he stated that he deposited the title document to the disputed property with Mr. Adebagbo, and reluctantly executed the sale agreement and ratification document. He also stated that upon a misrepresentation by the Appellant’s agents (Mr. Adebagbo and one Alhaja Abeke Babatunde) that the said documents would be destroyed if he repaid within three months, he executed the sale agreement, letters of introduction, and notices to quit.
After trial at the high court, it was held that the parties’ transaction was an agreement for a loan and not for sale of land. The court also refused to order specific performance of the sale agreement because it was executed under a misrepresentation that it was security for the loan, and not intended to transfer ownership. The Appellant’s claims were then dismissed. The Appellant appealed to the Court of Appeal.
In the appeal, the court disagreed with the decision of the high court that the sale agreement and ratification document were executed as a result of misrepresentation. The court however refused to order specific performance on the different ground that the claim was statute barred under the Statute of Limitation Law of Oyo State. This was because, during trial, it was found that the sale agreement prepared in 1993 was backdated in the ratification document to 1977. This was to deceive the Governor into giving his consent to the transaction, under the belief that the transaction took place before the Land Use Act of 1978 was promulgated.
The reason for refusing the order for specific performance was never argued on by the parties. It was an issue the court raised and determined on its own. Having not specifically raised this issue or addressed the court on it, the Appellant felt his right to fair hearing had been violated. For this, he lodged a further appeal at the Supreme Court (“the Court”). The principal issue submitted for the Court’s determination was whether the Court of Appeal rightly affirmed the high court’s refusal to order specific performance based on findings arrived at without giving the Appellant a chance to address the issue.
In his arguments, the Appellant posited that the refusal of the Court of Appeal to grant the order of specific performance breached his right to fair hearing because it was not based on issues that were raised or argued on by the parties. In the Appellant’s view, after finding that the Respondent indeed sold his property to the Appellant, the proper consequential order to make was that of specific performance. A refusal to do so was considered by the Appellant as taking back with its left hand what the court granted with the right. This proposition was supported by the authorities of FIDELIS SHIPPING CO. LTD. v V/O EXPORTCHLEB, LAWAL v COKER and NWOGA v BENJAMIN.
The Appellant further submitted that there was no evidence showing that the Statute of Limitation of Oyo State applied in Osun State, where the disputed land was situated. On the issue of deceit, the Appellant submitted that by Order 25 Rule 6 of the High Court of Osun State (Civil Procedure) Rules, issues of fraud and deceit were to be specifically pleaded by a party relying on same.
In reply, the Respondent argued that the issue of the sale agreement being deceitful was one made in passing which did not form the crux of the Court of Appeal’s decision. While relying on the authority of SARAKI & ORS v KOTOYE, the Respondent submitted that an appeal based on a passing comment of the court ought to be struck out as incompetent.
Alternatively, the Respondent argued that assuming the issue of deceit formed the crux of the Court of Appeal’s decision, it was an issue of law, and not facts, which could be raised by the court without giving parties a chance to address the court on it. This argument was supported with the authority of EFFIOM v C.R.S.I.E.C. Relying further on this authority, the Respondent submitted that in order for the Court of Appeal’s decision to be set aside, the Appellant had to establish that injustice was occasioned to him by it. The Appellant in turn contradicted the Respondent’s submission that he appealed against a passing comment of the Court of Appeal.
After considering the Court of Appeal’s decision, the Court agreed with the Appellant that the decision regarding the applicability of the Limitation Law of Oyo State formed part of the court’s main decision. This was because, the Court of Appeal refused to order specific performance having found the back-dating in the ratification document deceitful, and the action, statute barred under the Limitation Law of Oyo State.
Thereafter, the court considered the Court of Appeal’s decision refusing to order specific performance based on issues raised on its own, as occasioning substantial injustice. In the words of the court, “…in the absence of a respondent’s notice, if the lower court intended to refuse the prayer for specific performance on any ground other than the ground relied upon by the trial court, such as the alleged fraud occasioned by the backdating of Exhibit A, the parties ought to have been invited to address it on the issue”.
The court considered the Court of Appeal’s refusal to order specific performance based on a ground not addressed by the Appellant, as breaching section 36 (6) of the Nigerian Constitution dealing with the right to fair hearing. As a result, it was set aside and remitted back to the Court of Appeal for re-hearing on the issue of specific performance by a different panel. Counsel: For the Appellant Kehinde Ogunwumiju Esq.
For the Respondent Olumide Olujinmi Esq, Olukayode Ariwoola Jnr., Oluyomi Akintola (Miss) and Ifedolapo Esan (Miss)
Report Compiled by Modupe O. Otoide; Aluko & Oyebode, Lagos.