AHMADU KWALLO & ORS v. MUHAMMAD ASHIRU ABBAS (2016)

AHMADU KWALLO & ORS v. MUHAMMAD ASHIRU ABBAS

(2016)LCN/8235(CA

In The Court of Appeal of Nigeria

On Friday, the 4th day of March, 2016

CA/K/302/2012

JUSTICE

UWANI MUSA ABBA AJIJustice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJUJustice of The Court of Appeal of Nigeria

IBRAHIM SHATA BDLIYAJustice of The Court of Appeal of Nigeria

Between

1. AHMADU KWALLO
2. JIBRIL AHMAD
3. ALH. AHMAD LANGA. LANGA
4. ALH. SANI GARBA
5. ALH. UBA DOGOAppellant(s)

AND

MUHAMMAD ASHIRU ABBAS
For himself and on behalf of the family of Late Alh. Abbas Sarkin HausawaRespondent(s)

RATIO

WHETHER OR NOT PARTIES AND THEIR COUNSEL ARE BOUND BY THE RECORD OF APPEAL

For a clear appreciation of what transpired at the trial Court, there must be recourse to the record of this appeal which has been validly transmitted and in respect of which there has been no controversy. The established position of law is that the appellate Court, the parties as well as their learned Counsel are all bound by the record of appeal and no one is permitted to go outside the record. See LARMIE V. DATA PROCESSING MAINTENANCE SERVICE LIMITED (2006) ALL FWLR (pt.296) 775; AUDU V. A.G. FEDERATION (2012) VOL. 11 MJSC 193. PER AKEJU, J.C.A.

THE AIM OF AN AMENDMENT

It is now well settled that the aim of an amendment such as that granted to the 4th appellant is to correct processes of Court so as to prevent the manifest justice of the case from being defeated or delayed by slips which occur from the inadvertence of Counsel. See AKANINWO V. NSIRIM (2008) 9 NWLR (Pt. 1093) 439; IPADEOLA v. OSHOWOLE (1987) 5 SCNJ 200; CHIEF ADEDAPO ADEKEYE V. CHIEF AKINOLUGBADE (1987) 3 NWLR (Pt. 60) 214. It is also trite law and also settled that once an amendment is granted what stood before the amendment of the process is no longer material before the Court and no longer defines the issues for trial in the case. See AGBABIAKA V. SAIBU (1998) 10 NWLR (Pt. 571) 534; OKONKWO V. OKONKWO (1998) 10 NWLR (pt. 571) 554; ROTIMI v. MCGREGOR (1974) 11 SC 133. PER AKEJU, J.C.A.

DEFINITION OF A COUNTER-CLAIM

A counter claim is known in law as a claim made by the defendant in the same action filed against him. The counter claim is an independent claim or action wherein the defendant in the action assumes the position of the plaintiff while the plaintiff becomes the defendant. The burden of proving the counter claim and the standard of its proof are the same as any other civil action. See MAOBISON INTERLINK ASSOCIATE LTD. V. U.T.C. NIGERIA PLC (2013) LPELR SC 215/2003, (2013) ALL FWLR (Pt. 694) 52. PER AKEJU, J.C.A.

WHETHER OR NOT THE COURT IS BOUND TO HEAR AND DETERMINE THE RIGHTS OF PARTIES BASED ON THE PROCESSES PLACED BEFORE IT

Under our legal system, a judge or Court is not allowed to ignore a process filed in a case or to refuse to hear and determine same. The Court has a duty to hear the parties and determine their legal rights based on the processes placed before the Court. A refusal of the Court to hear a process constitutes a breach of the right to fair hearing which is guaranteed under Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). See MOBIL PRODUCING NIG. UNLTD. V. MONOKPO (2004) ALL FWLR (Pt.195) 1; DINGYADI v. INEC (2010) ALL FWLR (pt. 550) 1204. PER AKEJU, J.C.A.

THE FUNDAMENTAL RGHT TO FAIR HEARING

The right to fair hearing being a fundamental constitutional right, must be observed in any trial or proceeding in a Court or Tribunal, any breach thereof with respect to any of the parties renders the whole proceeding a nullity no matter how well it might have otherwise been conducted. See ADIGUN V. A.G. OYO STATE (1987) 1 NWLR (Pt. 53) 674; KIM V. STATE (1992) 4 SCNJ 81. Any judgment that has been given without adherence to the principles of fair hearing is itself a nullity and is capable of being set aside by either the Court that gave the judgment or the appellate Court. See BAMGBOYE v. UNIVERSITY OF ILORIN (1999) 10 NWLR (pt. 622) 290; AMADI V. THOMAS APLIN & CO. LTD. (1972) 2 SC 288. PER AKEJU, J.C.A.

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment):This appeal is against the judgment of the High Court of Kano State delivered on 30/3/2012 in Suit No. K/201/2004 instituted by the Respondent by means of the writ of Summons and statement of claim which were subsequently amended by the Amended Writ of Summons and Amended Statement of claim filed on 6/11/2005.

?The claim of the Respondent as plaintiff was for declarations, perpetual injunction and general damages of N1,500,000.00 against the appellants jointly and severally as defendants for trespass. The Respondent had claimed to be one of the sons/heirs of the late Alh. Abbas Sarkin Hausawa who was the holder of the Certificate of Occupancy No. LKN/COM/RC/85/15 covering Plot No. 52 plan No. KAN 545 at Katin Kwari Market Fagge Ta Kudu Fagge Local Government Area, Kano which consisted of buildings of flats, seven stores, 104 shops among other things with an undeveloped space which said property devolved on the entire heirs of the deceased, was distributed among the legal heirs by Upper Area Court Yan’hwaki in Suit No. CV/174/97 and later modified by the Sharia Court of Appeal

Kano leaving the undeveloped space unpartitioned.

It was also stated by the Respondent that after the partitioning of the property, the Appellants entered unto the unpartitioned space and erected seven shops thereon in disregard of warning by the legal heirs of the deceased who had let the unpartitioned portion or space to some tenants but deprived of that opportunity by the act of the Appellants.

The 1st, 2nd, 3rd and 5th Appellants filed joint statement of defence while the 4th Appellant filed a separate statement of defence. The 1st, 2nd, 3rd and 5th Appellants admitted that the Respondent was one of the heirs of Late Alh. Abbaas, but denied the existence of any undeveloped space unpartitioned out of the property of the deceased by the Upper AreaCourt Yanawaki as all the properties were distributed to his heirs. They denied the alleged act of trespass and receipt of any warning from the Respondent. They stated that the Respondent has no space or piece of Land in the premises while they (1st, 2nd, 3rd and 5th defendants) had been using the frontage of their shops as dictated by the Custom and usage in the market.

In his amended statement of

defence filed on 10/5/2010, the 4th defendant also followed the line of defence of the 1st, 2nd, 3rd and 5th defendants by denying the alleged act of trespass and asserting that the Respondent (plaintiff) had no unpartitioned space and that he has been using his own shop in line with the usage and custom in the market. The Respondent filed a Reply.

At the trial of the suit, the Respondent testified and called another witness while documents were tendered and admitted as Exhibits. The 1st, 2nd, and 4th appellants (defendants) testified in the defence and their Learned Counsel tendered documents from the Bar which were admitted as exhibits. Upon conclusion of hearing and filing of written addresses by the Counsel, the learned trial judge entered judgment for the Respondent in the following terms;
“1. It is hereby declared that any open space in front of the 2nd, 3rd, 4th and 5th defendants in excess of (8) eight feet at plot 52, Fagge Tako Kanti Kwari Market, Kano covered by Certificate of Occupancy No. LKN/COM/85/15 bearing the name of Late Alh. Abbas Sarkin Hausawa devolved on his heirs.
2. It is also declared that the piece of Land by the right side

of the shop of 1st defendant at the premises described in relief number 2 above devolved on heirs of Late Alhaji Abbas Sarkin Hausawa.
3. It is declared that the 2nd, 3rd, 4th and 5th defendants have no right to erect any building in front of their respective shop in excess of 8 feet”.

Being dissatisfied with the decision of the High Court of Kano State and the orders of that Court, the defendants appealed to this Court through their Notice of Appeal dated 24th day of April, 2012 containing five grounds of Appeal. The Appellants’ Brief of Argument settled by Yakubu Abdullahi Esq., was subsequently filed on 26/3/14 while the Respondent’s Brief prepared by N.A. Ayagi Esq., was filed on 5/5/15 but deemed properly filed on 14/9/15.

The issues for determination in the appeal as formulated and argued by the appellant are the following;
“1. Whether there is enough evidence before the Lower Court to support its finding in favour of the Respondent in respect of 8 feet of land in the frontage of the Appellants’ shops.
2. Whether the Lower Court was wrong in rejecting Exhibits 1, 1A, 5 and 5A admitted in evidence with
the consent of the

Respondent’s counsel relying heavily on the objection raised by the said Respondent Counsel in the written address.
3. Whether the Court was right in the judgment when it granted the Respondent a relief which was never claimed, or sought nor proved by evidence.
4. Whether the Lower Court was right when it failed to thoroughly consider and pronounce on the Appellants’ counter claim duly filed before it.

The above are the issues adopted and argued by the Learned counsel for the Respondent and I also adopt them and will base the consideration and determination of the appeal on those four issues.

On the first issue, the Appellant’s Counsel argued that the assertion of the Respondent was that the property of the Late Abbas Sarkin Hausawa was distributed by the Upper Are Court Yanhwaki through Suit No. CV/174/97 but the distribution was modified by the Sharia Court of Appeal, Kano in suit No. SCA/CV/KN/283 which left an undeveloped Land for the heirs which is at Plot No. 52, Fagge ta Kudu Kantin Kwari Market Kano covered by the Certificate of occupancy No. LKN/COM/85/15.
It was contended that the Respondent that pleaded these facts and

relied on the two judgments of the Courts however refused to tender the judgments but they were tendered by the Appellants and admitted as Exhibits 1 and 1A and 5 and 5A respectively by the trial Court. The record of proceedings of the two Courts as tendered and admitted have shown that there was no piece of land or space left for the Respondent or heirs of Late Hausawa (the deceased) unpartitioned at plot No. 52 Fagge ta Kudu as claimed by the Respondent and it is clear that the Respondent did not specifically claim any piece of land in excess of 8 feet in the frontage of the Appellants’ shops and no evidence was led to establish same.
The Learned Counsel submitted that the parties are bound by their pleadings and the Court cannot on its own offer evidence or make a claim which the parties have not clearly stated or established by evidence.

It was submitted, with reliance on the case of DADA V. DOSUMU (2006) 27 NSCQR 485 that the Respondent had a duty to state precisely the measurement of the land they claim or its area, but the Respondent failed woefully to do so and failed to offer credible evidence in support of the claim. It was argued further

that the Respondent failed to adduce evidence in support of his assertion because the evidence of the two witnesses was at variance with the pleading while the documents they relied upon do not show that there was any piece of land that was not distributed or that any 8 feet of land in the frontage of appellants shops devolved on the Respondent.

The Learned Counsel then submitted that the findings and judgment of the trial Court is perverse and cannot stand citing the case of UBA v. BTL (2006) 28 NSCQR 381; BUNGE v. GOVERNOR RIVER STATE (2006) 27 NSCQR 46.

On this issue the Learned counsel for the Respondent argued that the Respondent who had produced the original title documents on the property and proved that only shops and not adjoining lands were sold to the appellants, had no further obligation to rely on the record of proceedings Exhibit 5A that has nothing to prove title, and they bear no obligation to produce the document even when they had pleaded same, the failure to produce the document only shows that they abandoned that line of evidence or pleadings; INGLARI V. MOTHERCAT LTD. (1999) 12 SCNJ 101.

?The Learned Counsel argued that the

identity of the disputed land was not in issue at the trial, the same having not been raised by any of the parties. It was submitted that since the identity of the land in dispute was clear and undisputed, the Appellants are estopped from raising the issue at this stage without the leave of Court. OJIOGU V. OJIOGU (2010) 3 SCNJ 418; ONWUKA v. ONONUYI (2009) 5 SCNJ 65; GARUBA V. OMOKHODION (2011) 6 SCNJ 334. He argued that the existence of any ambiguity in respect of the identity of the land was cured by the physical inspection of the land by the Learned judge who visited the locus in quo and saw the land in dispute; SHEUSE V. PLANKSHAK (2008) 7 SCNJ 224.

The Respondent’s Counsel contended that the Respondent proved his claim to the space of land by both the evidence of DW1 and DW2 as well as documentary evidence by producing documents of title to the entire land showing the boundary thereof and the part that was transferred to the Appellants. The Respondents on who the burden had shifted to prove that the disputed land and not only the shops were sold to them failed to do so, and the Court rightly made its findings against them; GBAFE V. GBAFE &

ORS. (1996) 6 SCNJ 107; CONGRESS FOR PROGRESSIVE CHANGE V. INEC & ORS. (2011) 12 SCNJ 644.

The Respondent himself was the PW1 at the trial. At pages 15 – 16 of the record of Appeal, the Respondent testified that “…
I know the subject matter of this case which is over a piece of land at number 52, Fagge Ta Kudu, kantin Kwari Market”. This piece of land is within the property of our late Father Alh. Abbas s. Hausawa Agege. After his death, his properties was distributed among his legal heirs according to Islamic injunction by defunct Upper Area Court Yan’awaki, Kano.
There was an appeal against the Ruling of that Court to the Kano State Sharia Court of Appeal which later amended the decision of Upper Area Court Yan’awaki. Then the Court distributed the left over to the legal heirs. The Court distributed only shops Number 52, Fagge Ta Kudu which consists of 104 shops; 10 flats, six of which are two bed room flats and the remaining 4 are in single block consisting of three bed rooms each. There are also 15 stores, four temporary shops made up of corrugated iron sheet and one generator house and the land being the subject-matter of this suit.

These existing structures are divided between the legal heirs leaving behind this land unpartitioned We are still holding the original Certificate of Occupancy in respect of No. 52 Fagge Ta Kudu Kano and we are still in possession of all the building plan which has shown clearly the piece of land in question. The new number of the Certificate of Occupancy is RC/COM/853. It is in the name of Alhaji Abbas Sarki Hausawa. This is the original Certificate of Occupancy of the property at No. 52 Fagge Ta Kudu kano”.

Under cross examination, he said some of the heirs of the deceased sold their own shops in Kwari Market to some of the appellants and they are free to use their property.

The PW2, Alhaji Tanko Gambaga who had spent 35 years in Kwari Market and a member of Elders Committee of the Market stated that by the usage of the Market, an owner of a shop can display goods in front of the shop but cannot put up a building.
He stated also that a space existed within the premises of the shops.

The evidence of the DW1, Jibrin Salisu is that the subject matter of the suit is a house belonging to Sarkin Hausawas at Kanti Kwari Market, Kano and that

after the death of Sarkin Hausawa and the distribution of his estate, his heirs sold the premises and he (DW1) bought a shop. He denied the existence of any undeveloped space or piece of land but admitted building in front of the shop he bought without committing trespass into the land of the Respondent. Under cross-examination however he stated that he bought the shop together with the open space in front thereof. He stated also that he was aware that the Respondent had a Certificate of Occupancy in respect of the premises in dispute but he did not know whether the passage in front of his shop was covered by the plan attached to the Certificate of Occupancy.

The DW2 said “I know the subjed-matter of this suit, the subject-matter is a house belonging to the Late Alhaji Abbas Sarkin Hausawa Agege comprising of about 100 shops, flats and warehouses or stores. Alhaji Abbas Sarkin Hausawa died about 8 years ago. After his death the Yan Awaki Upper Area Court shared his estate among his heirs. About 90 percent of the heirs sold their shares. I did purchase two shops from the heirs. After I purchased same,I built in front of the two shops”. See page 45 of the

record of appeal. Also at the same page the DW2 said. “I want the Court to dismiss the plaintiffs’ claim and grant our counterclaim”. It is noted that this DW2, Alhaji Sani Garba Wada was the 4th defendant at the trial Court and the 4th appellant in this appeal.

This latter part of the evidence of the DW2 regarding the counter claim takes me to one of the issues formulated by the Learned counsel for the appellants and adopted by the Respondent which is whether the Lower Court was right when it failed to thoroughly consider the appellants’ Counter claim. Although the issues is number four in the list of issues, I intend to take and resolve this issue first due to its consequence on the decision of the trial Court in the event that it succeeds or it is resolved in favour of the appellants.

The argument of the appellants’ Learned Counsel is that the two sets of defendants at the trial, the 1st, 2nd, 3rd and 5th defendants on one hand and the 4th defendant on the other, filed separate statements of defence each of which contained Counter Claim to which the plaintiff did not file a Reply, but the trial Court did not make any pronouncement in respect of

the 4th defendant’s Counter claim which the plaintiff should be deemed to have admitted; ORAH v. NYNM (1992) 1 NWLR (pt. 212) 279; DANTATA v. DANTATA(2002) 4 NWLR (pt. 756) 144.
The Learned Counsel submitted, that the failure to consider the 4th defendant’s Counter claim is a denial of his right to fair hearing under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and it is fatal to the proceedings and decision of the trial Court; METTLELI v. OLOWO-OPEI (2006) 1 JNSC (Pt.2) 2651; B.O.N. LTD. v. ADEGOKE (2006) 14 JNSC (Pt. 19) 400; B.O.N. V. OLUWAFEMI (2006) 4 JNSC (Pt. 13) 201.

On this issue, the Respondent’s Counsel argued that the trial Court did not decline to entertain or consider the counter claim of the appellants but made a finding that they had no valid or any counter claim before the Court because the statement of defence of the 1st, 2nd, 3rd and 5th appellants dated 28th March, 2007 had no Counter claim. The Learned Counsel further argued at page 11 of his brief that when later they brought a new statement of defence containing a counter claim, it was in addition to an existing one that was never

amended or even referred to. The second defence and all it contained could only be invalid as the Appellants couldn’t possibly have two defences for the same parties in one case. He submitted that even if there was any valid Counter claim, it must fail because the trial Court had granted title to the Respondent in respect of the land; USMAN V. GARKE (2003) 14 NWLR (Pt. 840) 261.

As part of the judgment of the trial Court, the learned trial judge said at page 419 of the record of appeal that “having gone through the record of this Court, I found that the 1st, 2nd, 3rd and 5th Defendants had already filed a statement of

defence which contained no counter-claim before another statement of defence containing a Counter claim was purportedly filed. Before filing the second statement of defence, no reference was made to the one earlier filed. In the circumstance, I hold that the first statement of defence filed by A.M. Bello Esq. is the only valid statement of defence filed by the 1st, 2nd, 3rd and 4th defendants and as same contained no counter claim at all, there is ipso facto no valid counter claim before this Court. Having held that there is no valid counter claim, there is no need to determine whether same has been proved”.

It is obvious from the above finding of the learned trial judge that there was no mention of whether or not the other set of defendant, the 4th defendant, now 4th appellant did file any or any valid counter claim nor was there any determination of that counter claim if it was filed.

The material facts as can be gleaned from the record of appeal are that at the proceedings of 28/4/2010 at page 32 of the record, one Mal. Yakubu Abdullahi appeared as Counsel for the defendants and informed the Court that he had been approached by the defendants to

take over the defence of the case. He sought an adjournment to regularize and it was granted. At the proceedings of 13/1/11 the same Yakubu Abdullahi Esq, moved two separate applications first for 1st, 2nd, 3rd and 5th defendants and another for the 4th defendant, both by motion on notice dated the 10th May, 2010 for extension of time to file defence. The applications were not opposed and they were granted. The amended statement of defence filed on behalf of the 4th defendant at pages 99 – 103 of the record of appeal, and the 1st, 2nd, 3rd and 5th defendants on pages 121 – 125 of the record of appeal both separately contain counter claim. The Counter claim of the 1st 2nd, 3rd and 5th defendantscontains 5 reliefs of declarations, injunction and N2,000,000.00 damages, while the amended statement of defence of the 4th defendant also contains counter claim for similar reliefs.

(2008) 9 NWLR (Pt. 1093) 439; IPADEOLA v. OSHOWOLE (1987) 5 SCNJ 200; CHIEF ADEDAPO ADEKEYE V. CHIEF AKINOLUGBADE (1987) 3 NWLR (Pt. 60) 214.

It is also trite law and also settled that once an amendment is granted what stood before the amendment of the process is no longer material before the Court and no longer defines the issues for trial in the case. See AGBABIAKA V. SAIBU (1998) 10 NWLR (Pt. 571) 534; OKONKWO V. OKONKWO (1998) 10 NWLR (pt. 571) 554; ROTIMI v. MCGREGOR (1974) 11 SC 133.

?Another principle of law that is apt here is that an amendment to pleadings ordered by Court at any stage of the proceedings dates back to the date the pleadings were originally filed. See JATAU v. AHMED (2003) 4 NWLR (Pt.811) 498.

The findings and holding of the learned trial judge with regards to the processes filed by the appellants have no root in the record of the Court and are therefore perverse. The correct position is that the two sets of defendants now appellants had valid and pending counter claim before the Court which the learned judge ignored or refused to consider in the determination of the case.

A counter claim is known in law as a claim made by the

defendant in the same action filed against him. The counter claim is an independent claim or action wherein the defendant in the action assumes the position of the plaintiff while the plaintiff becomes the defendant. The burden of proving the counter claim and the standard of its proof are the same as any other civil action. See MAOBISON INTERLINK ASSOCIATE LTD. V. U.T.C. NIGERIA PLC (2013) LPELR SC 215/2003, (2013) ALL FWLR (Pt. 694) 52.

The right to fair hearing being a fundamental constitutional right, must be observed in any trial or proceeding in a Court or Tribunal, any

breach thereof with respect to any of the parties renders the whole proceeding a nullity no matter how well it might have otherwise been conducted. See ADIGUN V. A.G. OYO STATE (1987) 1 NWLR (Pt. 53) 674; KIM V. STATE (1992) 4 SCNJ 81. Any judgment that has been given without adherence to the principles of fair hearing is itself a nullity and is capable of being set aside by either the Court that gave the judgment or the appellate Court. See BAMGBOYE v. UNIVERSITY OF ILORIN (1999) 10 NWLR (pt. 622) 290; AMADI V. THOMAS APLIN & CO. LTD. (1972) 2 SC 288.

It is clear to me that the proceedings conducted by the learned trial judge, Hon. Justice Wada Abubakar Umar in suit No. K/300/2004 was in breach of the constitutional rights of the appellants to fair hearing, and the proceedings as well as judgment based thereon delivered on 30th March, 2012 amount to nullity in consequence whereof I set that judgment aside being a nullity. This appeal should, and it actually succeeds on this issue and it is allowed. The suit No. K/31/2004 is remitted to the Chief Judge of Kano State for fresh trial before a judge of the High Court of Kano state other than Hon. Justice Wada

Abubakar Umar.

In view of this order of this Court, it has become unnecessary to go into the other issues raised in this appeal as doing so may prejudice or preempt any decision by the trial Court.
I make no order as to costs.

UWANI MUSA ABBA AJI, J.C.A.:I read in advance the judgment of my learned brother, Isaiah Olufemi Akeju, JCA, just delivered.

I agree with my learned brother that a Judge or Court is not allowed to ignore a process filed before it or to refuse to hear and determine same. A refusal to hear a process filed constitute a breach of the right to fair hearing which is guaranteed under Section 36 of the 1999 Constitution (as amended).

Consequently, the justice in this appeal lies in remitting the suit No. K/201/2004 to the Chief Judge of Kano State for trial de novo by other Judge of the Kano State High Court other than Hon. Justice Wada Abubakar Umar.

I abide by order as to costs.

IBRAHIM SHATA BDLIYA, J.C.A.:I have had the advantage of reading in draft the judgment just delivered by my learned brother, Isaiah Olufemi Akeju, J.C.A. The learned

judge of the lower Court did not afford the appellants the opportunity to present their case wholly; which is a breach of their constitutional right to fair hearing. Fair hearing is a Constitutional Provision under Section 36 (1) 1999 Constitution (Altered) , which is that:
“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”
The Courts have had in a plethora of decided cases enunciated the importance of the provisions of Section 36 (1) of the Constitution , and the necessity of its observance in the litigation processes by the Courts. In WAPAH V. MOURAH (2006) 18 NWLR (Pt. 1010) P. 1 @ 48 – 49, this Court re-emphasized that fair hearing as encompassed in the 1979 and 1999 Constitutions whose provisions are impari materia with the 1999 Constitution (Altered) is not an imaginary proposition. It is a state of affairs that consists of many ingredients. Fair hearing

under the Constitutions is an entrenched fundamental right. It encompasses not only compliance with the rules of natural justice – audi alteram partem and nemo judex in causa sua – but also entails compliance with the provisions of Sections 33 and 36 of the 1999 Constitution (amended). It also entails doing, during the course of trial, whether civil or criminal trial, all the things which will make an impartial observer leaving the Court room to believe that the trial has been balanced and fair to both sides of the trial. All that is required for a fair hearing is that a party to an action should be heard.
Section 36 (1) of the Constitution (1999) as (Altered) guarantees the right to fair hearing. An essential aspect of the right to fair hearing is that each party to the dispute or conflict must be given the opportunity to be heard to present his own side of the dispute before a decision is taken by the Court. See BON v. ADEGOKE (2006) 10 NWLR (Pt. 988) P. 339 @ 356. The basic criteria and attributes of fair hearing include the following
(a). that the Court or tribunal shall hear both sides not only in the case but also in all material issues in the

case before reaching a decision which may be prejudicial to any party in the case;
(b). That the Court or tribunal shall give equal treatment, opportunity and consideration to all concerned;
(c). That the proceedings shall be heard in public and all concerned shall have access to and be informed of such a place of public hearing;
(d). That having regard to all the circumstances in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done.
What constitutes fair hearing depends on the facts and circumstances of each case. See UKWUYOK V. OGBULU (2010) 5 NWLR (Pt. 1187) P. 316 @ 338 where Abdullahi, JCA had this to say on page 338:
“It is now trite that the test for determining fair hearing is an objective one because what constitutes fair hearing depends on the circumstances of each case. In the Case: of Afonja Community Bank(Nig.) Ltd. v. Akpan (2002) 16 NWLR (pt.792) 154 at 169 paras H- A, this Court held as follows:
It has to be pointed out however that what constitutes fair hearing depends on the circumstance of each case. The real test is an objective one

… It is my view that in considering any appeal hearing which relates to the issue of fair hearing, the whole proceedings in the Court below must come under scrutiny”.
The question of fair hearing is not just an issue of dogma, whether or not a party has been denied of his right to fair hearing is to be judged by the nature and circumstances surrounding a particular case. The crucial determinant is the necessity to afford the parties equal opportunity to put their case to the Court before the Court gives its judgment. Pam v. Mohammed (2008) 16 NWLR (Pt. 1112). See Stafoil (Nig.) LTD v. Inductucon (Nig.) Ltd (2014) 9 NWLR (Pt.1411) P.1 @ 80, where it was held that:
“The true test of fair hearing is the impression of a reasonable person who was present at the trail whether from his observation justice has been done. The fundamental basis underlying the principle of fair hearing is the doctrine of audi alteram partem, which means to hear the other side. Fair hearing, in other words, involves situations, where, having regard to all the circumstances of a case, the hearing may be said to have been conducted in such a manner that an impartial observer

willconclude that the Court was fair to all the parties in the proceedings. ASTIC V. QUORUM Consortium Ltd. (2004) 1 NWLR (Pt.855) 601; Ogundoyin v. Adeyemi (2004) 13 NWLR (Pt 730) 403; Samai Sonka Co. Nig. Ltd. v. Adzege (2001) 9 NWLR (Pt.718) 312 referred to) P. 68.”

It is for the foregoing, and the fuller reasons adumbrated in the lead judgment, that, I allow the appeal, for the proceedings of the lower Court is a nullity having been conducted in breach of the constitutional right to fair hearing which occasioned a miscarriage of justice to the appellants. Consequently, I too, allow the appeal, set aside the right of the lower Court delivered on the 30th of March 2012, and remit the case No. K/201/2004 to the Chief Judge of Kano State High Court for trial de novo by another Judge, other than Justice Wada Abubakar Umar. I abide by the order as to costs.

Appearances

Yakubu Abdullahi, Esq.For Appellant

AND

N.A. Ayagi, Esq.For Respondent