SUBSEA SERVICES INTL INC. v. ACCESS BANK (2022)

SUBSEA SERVICES INTL INC. v. ACCESS BANK

(2022)LCN/16398(CA)

In The Court of Appeal

(LAGOS JUDICIAL DIVISION)

On Tuesday, March 22, 2022

CA/L/1226/2016

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Peter Oyinkenimiemi Affen Justice of the Court of Appeal

Between

SUBSEA SERVICES INTERNATIONAL INC. (Suing by Its Lawful Attorney, Olakunle Kusamotu) APPELANT(S)

And

ACCESS BANK RESPONDENT(S)

RATIO

WHETHER OR NOT A COURT MUST HEAR ALL APPLICATIONS PLACED BEFORE IT

At this juncture, it is apropos to place on record, pronto, that applications form the inevitable corpus juris of our judicial system, see C.C.B. (Nig.) Plc v. Ozobu (1998) 3 NWLR (Pt. 541) 290; Odedo v. Oguebego (2015) 13 NWLR (Pt. 1476) 229. It is settled law, beyond any peradventure of doubt, that a Court, whether trial or appellate, is saddled with the bounden duty to hear every application placed before it. This is so even if such application is frivolous, an abuse of Court, an unreasonable process, downright stupid, unmeritorious, weak or manifests any defects in it. This duty is not optional. The success or failure of such an application is immaterial. The duty is to ensure the preservation and enforcement of a party’s right to fair hearing, see Kotoye v. Saraki (1991) 8 NWLR (Pt. 211) 638; Eke v. Ogbonda (2006) 18 NWLR (Pt. 1012) 506; Nalsa and Team Associates v. NNPC (supra) Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587; Mobil prod. (Nig.) Unltd. v. Monokpo (2003) 18 NWLR (Pt. 852) 346; Odedo v. Oguebego (supra); Ogunseinde v. SGB Ltd. (2018) 9 NWLR (Pt. 1624) 230; Adebiyi v. Adehanbi (2018) 16 NWLR (Pt. 1645) 242; C. & C. B. Dev. Co. Ltd. v. Min., E.H. & U.D. (2019) 5 NWLR (Pt. 1666) 484. PER OGBUINYA, J.C.A.

WHETHER OR NOT A PARTY MUST MOVE THE COURT TO GRANT HIS RELIEF IN A MOTION

In domain of our adjectival law, which is properly sheltered and firmly propagated in our adversarial system of adjudication, application or motion, as it is commonly called, is not self-executory. That is to say, whether on notice or ex-parte, it has to be moved or argued by its owner in the manner ordained by the law. If it is on notice, then there is, usually, a corresponding response, either in agreement or opposition, by the adversary/opponent. In law, a party or his counsel has to move the Court to grant the relief in the motion except he moves in terms of the motion, see Society BIC S.A. v. Charzin Ind. Ltd. (2014) 4 NWLR (Pt. 1398) 504. It is obvious the appellant’s application was not determined. A determination, in a law, connotes “the settling of a controversy by a judicial decision, a coming to a decision”, see Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205 at 263, per Nweze, JSC. In effect, the lower Court, with due reverence, unjustifiably fractured the law when it adjourned the applications sine die, on 9th June, 2016, without treating them. The judicial act constituted a judicial sacrilege which disclosed serious hostility to the law. It constituted a serious coup de grace to the viability/validity of the decision with the potential effect of their being marooned in the murky ocean of nullity. PER OGBUINYA, J.C.A.

THE POSITION OF LAW ON FAIR HEARING

FACTORS TO GUIDE THE COURT IN ENSURING FAIR HEARING

The apex Court, in Baba v. Civil Aviation (1991) 5 NWLR (Pt. 192) 388 at 423, per Nnaemeka-Agu, JSC, evolved the parameters to guide the Court to ensure fair hearing to include the right of the person to be affected:
(i) to be present all through the proceedings and hear all the evidence against him;
(ii) to cross-examine or otherwise confront or contradict all the witnesses that testify against him;
(iii) to have read before him all the documents tendered in evidence at the hearing;
(iv) to have disclosed to him the nature of all relevant material evidence, including documentary and real evidence, prejudicial to the party, save in recognised exceptions;
(v) to know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence; and
(vi) to give evidence by himself, call witnesses if he likes, and make oral submissions either personally or through a counsel of his choice.
See also, JSC, Cross River State v. Young (2013) 11 NWLR (Pt. 1364) 1; Eze v. FRN (supra); Olayioye v. Oyelaran 1 (2019) 4 NWLR (Pt. 1662) 351; La Wari Furniture & Baths Ltd. v. FRN (supra); S & D Const. Co. Ltd. v. Ayoku (supra). I will be guided by these catalogued elements of fair hearing as the barometer to measure the appellants’ grouch of infraction of its right to fair hearing.
As already noted, the law donates to the appellant the unbridled licence to present its case before the lower Court. The lower Court, without justification, failed to hear the appellant’s applications. Thus, that was a sterling instance of violation of the appellant’s inviolate right to fair hearing as entrenched in Section 36(1) of the Constitution, as amended, see Adebiyi v. Adekanbi (2018) 16 NWLR (Pt. 1645) 242. Put simply, the appellant discharged the burden to prove a denial of fair hearing which the law has saddled on it, see Maikyo v. Itodo (2007) 7 NWLR (Pt. 1034) 443; S & D Const. Co. Ltd. v. Ayoku (2011) 13 NWLR (Pt. 1265) 487. The appellant needed not to prove the damages or losses it incurred consequent upon the breach of its right to fair hearing, see Oshiomhole v. Airhiavbere (2013) 7 NWLR (Pt. 1353) 376; Olayioye v. Oyelaran I (supra). Proof of breach of fair hearing carries with it a miscarriage of justice. Put differently, a miscarriage of justice is inherent in a breach of a right to fair hearing, see Mpama v. FBN Plc. (supra); Eze v. Unijos (2017) 17 NWLR (Pt. 1593) 1; N.U.T, Taraba State v. Habu (supra); Thomas v. FJSC (2019) 7 NWLR (Pt. 1671) 284. PER OGBUINYA, J.C.A.

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal probes into the correctness of the decision of the High Court of Lagos State, Ikeja Division, (hereinafter addressed as “the lower Court”), coram judice: O. A. Ipaye, J., in Suit No. LD/ADR/265/2013, delivered on 9th June, 2016. Before the lower Court, the appellant was the judgment creditor/applicant whilst the respondent was the garnishee/respondent.

The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity. Sometime in 2011, the appellant entered into a contract for the supply of equipment and services to Allied Mechanical & Pipeline Services Limited (the judgment debtor) – a registered company in Nigeria. The consideration was denominated in the United States of America (USA) Dollars currency. Incidentally, the judgment debtor became indebted to the appellant in the sum of $488,486 for the equipment and services the appellant rendered to it. The judgment debtor defaulted in liquidating its indebtness and returning the equipment to the appellant despite repeated demands. Sequel to that default, the appellant beseeched the lower Court for redress against it in Suit No. LD/ADR/265/2013. The case was referred to the Lagos Multi-Door Courthouse (LMDC) whereat the parties settled the matter amicably based on executed terms of settlement filed in Court. The terms of settlement were entered as consent judgment of the lower Court on 8th June, 2015.

In a bid to enforce the consent judgment, the appellant commenced garnishee proceedings, filed on 12th February, 2016, against the respondent, inter alia. The lower Court granted a garnishee order nisi against the respondent in the sum of $46,740. On 23rd March, 2016, the lower Court made the garnishee order nisi absolute.

Subsequently, on 11th April, 2016, the appellant filed a motion on notice praying the lower Court for clarification of the currency in the consent judgment and direction of payment in the USA Dollars currency. On the same 11th April, 2016, the appellant filed a motion ex parte for garnishee order nisi on the 5% penalty arising from the consent judgment of 8th June, 2015. On 9th June, 2016, the two motions came before the lower Court which refused to hear them and declared itself functus officio.

The appellant was dissatisfied with the decision of the lower Court. Hence, on 11th August, 2016, the appellant lodged a 2-ground notice of appeal, copied at pages 88-91 of the record, wherein it prayed this Court for:
1. An Order allowing the Appeal and ordering the Appellant’s Motion on Notice dated 11th April, 2016 as prayed.
2. An Order of the Court directing the Respondent to pay the judgment sum of $46,740 (Forty-Six Thousand Seven Hundred and Forty US Dollars) to the Appellant.
3. An Order directing the Lower Court to hear the Appellant’s Motion Ex parte dated 11th April, 2016.

Thereafter, the parties, through their counsel, filed and exchanged their respective briefs of argument in line with the procedure for hearing civil appeals in this Court. The appeal was heard on 18th January, 2022.

During its hearing, learned appellant’s counsel, Ayodele Kusamotu, Esq., adopted the appellant’s brief of argument, filed on 4th May, 2017, and the appellant’s reply brief, filed on 9th November, 2018 but deemed properly filed on 18th January, 2022, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned counsel for the respondent, V.A. Jonah, Esq., adopted the respondent’s brief of argument, filed on 13th February, 2018 but deemed properly filed on 18th January, 2022, as forming his reactions against the appeal. He urged the Court to dismiss it.

In the appellant’s brief of argument, learned counsel distilled two issues for determination to wit:
1. Whether the Lower Court was right in refusing to hear and determine the Appellant’s Motion on Notice and the Appellant’s Motion Ex parte both dated 11th April, 2016.
2. Whether the decision of the lower Court in refusing to hear the Appellant’s Motions both dated 11th April, 2017 does not amount to denying the Appellant fair hearing.

In the respondent’s brief of argument, learned counsel crafted three issues for determination, namely:
1. Whether the lower Court was functus officio having regard to the Garnishee Order Absolute dated Wednesday, 23 March 2016 and other circumstances of this case;
2. Whether the Appellant’s Constitutional right to fair hearing was breached by the lower Court’s decision declining jurisdiction to entertain the Appellant’s Motions dated Monday, 11 April, 2016; and
3. Whether the conduct of the Appellant in not raising alarm from the point of the Order Nisi until the Order was made absolute does not amount to laches, acquiescence and estoppel by silence and estoppel by standing by.

A close look at the two sets of issues shows that they are, but for semantics, identical in substance. In fact, the respondent’s issues can be conveniently subsumed under the appellant’s. In view of the sameness, I will decide the appeal on the issues nominated by the appellant: the undoubted owner of the appeal. I will begin with the appellant’s issue two which is sufficient to determine the appeal.

Argument on the issue two
Learned appellant’s counsel submitted that the lower Court’s failure to pronounce on the appellant’s application before it amounted to a denial of fair hearing to it. He asserted that the appellant was not given an opportunity to be heard on the two motions which amounted to denial of its right to fair hearing. He relied on S.C.E.N. v. Nwosu (2008) All FWLR (Pt. 413) 1399; Okwuego v. Okemili (2013) LPELR – 22024. He posited that breach of right to fair hearing will nullify the proceedings. He cited Odedo v. PDP (2015) LPELR – 24738 (SC). He maintained that the lower Court’s failure to hear and determine the appellant’s two motions constituted a grave denial of fair hearing and led to a perverse decision and miscarriage of justice.

On behalf of the respondent, learned counsel contended that the decision of the lower Court to decline jurisdiction to entertain the appellant’s two motions did not amount to a denial of its right to fair hearing. He reasoned that the right to fair hearing, provided in Section 36 (1) of the Constitution, as amended, is not sacrosanct. He relied on The Governor of Kwara Sate v. Dada (2011) LPELR – 8132 (SC); Ogene v. Ogene (2008) 2 NWLR (Pt. 1070) 29; Onyekwuluje v. Benue State Government (2005) 8 NWLR (Pt. 928) 614; Olumesan v. Ogundepo (1996) 2 NWLR (Pt. 433) 628. He listed the two rules of natural justice – Nemo judex in causa sua and Audi alteram partem – that make up the right to fair hearing. He persisted that the lower Court’s decision in declining jurisdiction was neither perverse nor error of law to warrant the intervention of the appellate Court. He cited Ezeibe v. Ezeibe (2013) LPELR – 21907 (CA); Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360; Ukatta v. NdInaze (1997) 4 NWLR (Pt. 499) 257. He took the view that the lower Court’s decision in declining jurisdiction to hear the motions amounted to their refusal and the appellant should have filed a similar application and not an appeal. He referred to Order 6 Rule 3 of the Court of Appeal Rules, 2016. He noted that the appellant did not appeal against the garnishee order absolute. He described the appeal as an abuse of Court process. He concluded that the cases relied on by the appellant were inapplicable to the facts of the case.

On points of law, learned appellant’s counsel argued that “the motions were not refused by the lower Court so that Order 6 Rule 3 of the Court of Appeal Rules, 2016 was inapplicable. He postulated that appeal is a constitutional right which the appellant exercised. He cited Section 241 of the Constitution, as amended; Nalsa and Team Associates v. NNPC (1991) 8 NWLR (Pt. 212) 652; EFCC v. Agbele (2018) LPELR – 44677; Chevron (Nig.) Ltd. v. Imo State House of Assembly (2016) LPELR – 41563 (CA). He urged this Court to determine the two motions under Section 15 of the Court of Appeal Act, 2004. He referred to Akindele v. Abiodun (2008) LPELR – 8557 (CA).

Resolution of the issue.
A thorough audit of the issue exposes the kernel of its mission in the appeal. The issue, though seemingly stubborn, is canalised within a narrow compass. It queries the propriety or otherwise of the lower Court’s decision, declination to hear the appellant’s two applications, delivered on 9th June, 2016. Its specific agitation is that the lower Court should have entertained its applications that were aimed to breathe life into its garnishee order absolute made on 23rd March, 2016.

Now, the main anchor of the appellant’s nursed grievance orbits around the sparse decision of the lower Court which monopolises pages 87 of the record. Since it is the cynosure of the issue, it is germane to pluck it out, whence it is ingrained in the record, ipsissima verba, as follows:

PROCEEDING
Parties absent.
Appearances: Ayodele Kusamotu for the claimant/ judgment creditor/applicant and Dayo Adamolekun.
S. Nsofor for the 2nd garnishee Access bank Plc for garnishee. We have complied with your lordship order made on 23/03/16.
Court: Court is functus officio. This matter shall stand adjourned sine die.

It is important to understand and appreciate the nature of the two applications filed by the appellant on the same 11th April, 2016. The motion on notice was a post-judgment application. The reason is enshrined in the prayers therein. It solicited the lower Court to correct clerical errors in its garnishee order absolute of 23rd March 2016 under the firmament of the doctrine of slip rule. In the stratification of orders and adjudication, a garnishee order absolute is a final order that renders a Court functus officio, see UBN v. Boney Marcus Ind. Ltd. (2005) 13 NWLR (Pt. 943) 654; Alor v. Ngene (2007) 17 NWLR (Pt. 1062) 163. The motion ex parte had a different target. It sought to ignite the jurisdiction of the lower Court vis-à-vis the 5% penalty germinating from the consent judgment of 8th June, 2015.

At this juncture, it is apropos to place on record, pronto, that applications form the inevitable corpus juris of our judicial system, see C.C.B. (Nig.) Plc v. Ozobu (1998) 3 NWLR (Pt. 541) 290; Odedo v. Oguebego (2015) 13 NWLR (Pt. 1476) 229. It is settled law, beyond any peradventure of doubt, that a Court, whether trial or appellate, is saddled with the bounden duty to hear every application placed before it. This is so even if such application is frivolous, an abuse of Court, an unreasonable process, downright stupid, unmeritorious, weak or manifests any defects in it. This duty is not optional. The success or failure of such an application is immaterial. The duty is to ensure the preservation and enforcement of a party’s right to fair hearing, see Kotoye v. Saraki (1991) 8 NWLR (Pt. 211) 638; Eke v. Ogbonda (2006) 18 NWLR (Pt. 1012) 506; Nalsa and Team Associates v. NNPC (supra); Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587; Mobil prod. (Nig.) Unltd. v. Monokpo (2003) 18 NWLR (Pt. 852) 346; Odedo v. Oguebego (supra); Ogunseinde v. SGB Ltd. (2018) 9 NWLR (Pt. 1624) 230; Adebiyi v. Adehanbi (2018) 16 NWLR (Pt. 1645) 242; C. & C. B. Dev. Co. Ltd. v. Min., E.H. & U.D. (2019) 5 NWLR (Pt. 1666) 484.
It cannot be gainsaid, grounded on the phraseology and tenor of the lower Court’s terse decision chronicled above, that the appellant’s two applications were not determined. In the one-sentence order, the lower Court proclaimed: “Court is functus officio. This matter shall stand adjourned sine die”. The order, with due respect, exudes contradiction par excellence. In the order, the lower Court declared itself functus over the applications and in the same breadth adjourned them sine die – without a date. The second limb of the convulating order is a quintessence of an adjournment of the hearing of the appellant’s applications in futuro, though ad infinitium.
In domain of our adjectival law, which is properly sheltered and firmly propagated in our adversarial system of adjudication, application or motion, as it is commonly called, is not self-executory. That is to say, whether on notice or ex-parte, it has to be moved or argued by its owner in the manner ordained by the law. If it is on notice, then there is, usually, a corresponding response, either in agreement or opposition, by the adversary/opponent. In law, a party or his counsel has to move the Court to grant the relief in the motion except he moves in terms of the motion, see Society BIC S.A. v. Charzin Ind. Ltd. (2014) 4 NWLR (Pt. 1398) 504. It is obvious the appellant’s application was not determined. A determination, in a law, connotes “the settling of a controversy by a judicial decision, a coming to a decision”, see Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205 at 263, per Nweze, JSC. In effect, the lower Court, with due reverence, unjustifiably fractured the law when it adjourned the applications sine die, on 9th June, 2016, without treating them. The judicial act constituted a judicial sacrilege which disclosed serious hostility to the law. It constituted a serious coup de grace to the viability/validity of the decision with the potential effect of their being marooned in the murky ocean of nullity.

The gravamen of the appellant’s grouse, indeed its trump card on the terminal issue, is that the lower Court’s decision, delivered on 9th June, 2016, which failed to determine its applications was an erosion of its inviolable right to fair hearing as guaranteed by Section 36 (1) of the Constitution, as amended. Fair hearing denotes a trial which is conducted in accordance with all the legal rules formulated to ensure that justice is done/dished out to parties to the cause, see Eze v. FRN (2017) 15 NWLR (Pt. 1589) 433; Ardo v. INEC (2017) 13 NWLR (Pt. 1583 450; Regt. Trustees, P.C.N. v. Etim (2017) 13 NWLR (Pt. 1581) 1; Akingbola v. FRN (2018) 14 NWLR (Pt. 1640) 395; La Wari Furniture & Baths Ltd. v. FRN (2019) 9 NWLR (Pt. 1677) 262. Owing to its olympian status in the appeal, it is germane to display some of the notable features of fair hearing, a mantra, which, nowadays, competes with jurisdiction for prominence in adjudications.
The ancient concept of fair hearing traces its paternity to divinity. It was a common law doctrine which has metamorphosed into our corpus juris and, firmly, planted in Section 36(1) of the Constitution, as amended. It donates to the citizens the inviolate right to ventilate their grievances on the altar of the two concrete pillars of natural justice videlicet: audi alteram partem – hear the other side and nemo judex in causa sua – no one should be a judge in his own case. The whole essence of fair hearing, which is coterminous with fair trial, connotes giving parties to any proceedings, be it judicial or administrative body, an equal opportunity to present their cases. It follows that fair hearing is not synonymous with correctness of a decision. It centres on the cardinal principle that a fair-minded person who watched the proceedings, before a Court or administrative or quasi judicial body, should conclude that it exhibited even handedness/fairness in apportioning justice to the parties, see O.O.M.F. Ltd v. NACB (2008) 12 NWLR (Pt. 1098) 412; Nwanegbo v. Olawole (2011) 37 WRN 101; Kim v. State (1992) 4 NWLR (Pt. 233) 17; Newswatch Comm. Ltd. v. Atta (2006) 12 NWLR (Pt. 993) 144; FRN v. Akabueze (2010) 17 NWLR (Pt. 1223) 525; S & D Const. Co. Ltd. v. Ayoku (2011) 13 NWLR (Pt. 1265) 487; Ovunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522; Nigeria Navy v. Labinjo (2012) 17 NWLR (Pt. 1328) 56; J.S.C., Cross River State v. Young (2013) 11 NWLR (Pt. 1364) 1; Mpama v. FBN Plc (2013) 5 NWLR (Pt. 1346) 176; Aba v. Monday (2015) 14 NWLR (Pt. 1480) 569; Gov., Zamfara State v. Gyalange (2013) 8 NWLR (Pt. 1357) 462; Achuzia v. Ogbomah (2016) 11 NWLR (Pt. 1522) 59; Danladi v. Dangiri (2015) 2 NWLR (Pt. 1442) 124; Labour Party v. Bello (2017) 2 NWLR (Pt. 1548) 148; Darma v. Ecobank (Nig.) Ltd. (2017) 9 NWLR (Pt. 1571) 480; Olayioye v. Oyelaran I (2019) 4 NWLR (Pt. 1662) 351.
The apex Court, in Baba v. Civil Aviation (1991) 5 NWLR (Pt. 192) 388 at 423, per Nnaemeka-Agu, JSC, evolved the parameters to guide the Court to ensure fair hearing to include the right of the person to be affected:
(i) to be present all through the proceedings and hear all the evidence against him;
(ii) to cross-examine or otherwise confront or contradict all the witnesses that testify against him;
(iii) to have read before him all the documents tendered in evidence at the hearing;
(iv) to have disclosed to him the nature of all relevant material evidence, including documentary and real evidence, prejudicial to the party, save in recognised exceptions;
(v) to know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence; and
(vi) to give evidence by himself, call witnesses if he likes, and make oral submissions either personally or through a counsel of his choice.
See also, JSC, Cross River State v. Young (2013) 11 NWLR (Pt. 1364) 1; Eze v. FRN (supra); Olayioye v. Oyelaran 1 (2019) 4 NWLR (Pt. 1662) 351; La Wari Furniture & Baths Ltd. v. FRN (supra); S & D Const. Co. Ltd. v. Ayoku (supra). I will be guided by these catalogued elements of fair hearing as the barometer to measure the appellants’ grouch of infraction of its right to fair hearing.
As already noted, the law donates to the appellant the unbridled licence to present its case before the lower Court. The lower Court, without justification, failed to hear the appellant’s applications. Thus, that was a sterling instance of violation of the appellant’s inviolate right to fair hearing as entrenched in Section 36(1) of the Constitution, as amended, see Adebiyi v. Adekanbi (2018) 16 NWLR (Pt. 1645) 242. Put simply, the appellant discharged the burden to prove a denial of fair hearing which the law has saddled on it, see Maikyo v. Itodo (2007) 7 NWLR (Pt. 1034) 443; S & D Const. Co. Ltd. v. Ayoku (2011) 13 NWLR (Pt. 1265) 487. The appellant needed not to prove the damages or losses it incurred consequent upon the breach of its right to fair hearing, see Oshiomhole v. Airhiavbere (2013) 7 NWLR (Pt. 1353) 376; Olayioye v. Oyelaran I (supra). Proof of breach of fair hearing carries with it a miscarriage of justice. Put differently, a miscarriage of justice is inherent in a breach of a right to fair hearing, see Mpama v. FBN Plc. (supra); Eze v. Unijos (2017) 17 NWLR (Pt. 1593) 1; N.U.T, Taraba State v. Habu (supra); Thomas v. FJSC (2019) 7 NWLR (Pt. 1671) 284.
The constitutional doctrine of fair hearing, which owes its ancestry to divinity, mandates the Courts, on all the rungs of the judicial ladder, to always create congenial, egalitarian and hospitable milieu for parties to ventilate their cases in the temple of justice. It decrees, under pain of nullity in default, that Courts shall accord equal treatment, opportunity and consideration to the cases of parties. In the Latin days of the law, it was encapsulated in the maxim: Audi alteram partem. In the determination of legal rights of parties, justice must not only be done but must be manifestly and undoubtedly seen to be done. Indubitably, the proceeding treated the principles of fair hearing with disdain and contempt. In a spirited bid to castrate the issue and infuse validity into the decision, the respondent erected the defence of abuse of Court process against the appeal. It staked its defence on the provision of Order 6 Rule 3 of the Court of Appeal Rules, 2016 which is in pari materia with the prescription of Order 6 Rule 3 of the extant Court of Appeal Rules, 2021. It commands the appellant to make an application for similar purpose to this Court, within 15 days, on the lower Court’s refusal of its application. I had, at the cradle of this resolution/judgment, found that the appellant’s two applications were not entertained at all by the lower Court; a fortiori their refusal. The respondent has starved this Court of any extenuating circumstances/facts that will compel me to disturb that solemn finding which was reached after due obeisance to the law. The obvious fact that those applications were not entertained at all by the lower Court takes the case outside the perimeter of the provision of Order 6 Rule 3 of the Court of Appeal Rules, 2021. The provision can only be activated and employed, as a shield by a respondent opponent, where an application was determined and a decision of refusal made by the lower Court. In the glaring absence of a refusal of the applications, which was a condition-precedent for deployment of the provision, it is impotent to impregnate the respondent’s case with success.
Besides, a right of appeal is a constitutional right which stands to lord it over most other negative principles aimed at its foreclosure. Hence, an applicant can reap from it once he meets the necessary conditions, see Nigerian Army v. Yakubu (2013) 222 LRCN (Pt. 1) 120; Ngere v. Okuruket ‘XIV’ (2014) NWLR (Pt. 1417); Ani v. Effiok (2017) 8 NWLR (Pt. 1567) 281; Elias v. Eco Bank (Nig.) Plc (2019) 4 NWLR (Pt. 1663) 381; Nwora v. Nwabueze (2019) 7 NWLR (Pt. 1670) 1. It stems from the foregoing reasons that the defence of abuse of Court process, which the appellant brandished and paraded to emasculate the issue, flies in the face of the law. It is mired in the quicksand of defeasibility. In the face of non-determination of the appellant’s two applications, the lower Court’s stingy ruling trampled and fractured the appellant’s right to fair hearing as engraved in the sacred provision of Section 36 (1) of the Constitution, as amended, the fons et origo of all laws. The respondent’s weak-kneed defence was disabled from its birth. It cannot fly.

Where a party’s inviolate right to fair hearing is flouted, as in this case, no matter the quantum of fair-mindedness, dexterity, artistry and objectivity injected into the proceeding hosting the breach, it will be enmeshed in the intractable web of nullity, see Nyesom v. Peterside (2016) 7 NWLR (Pt. 1512) 452; C.K & W. M. C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487; Eze v. Unijos (supra); Ezenwaji v. U.N.N. (2017) 18 NWLR (Pt. 1598) 485; Poroye v. Makarfi (2018) 1 NWLR (Pt. 1599) 91; APC v. Nduul (2018) 2 NWLR (Pt. 1602) 1; S.A.P. Ltd. v. Min., Petroleum Resources (2018) 6 NWLR (Pt. 1616) 391; Zenith Plastics Ind. Ltd v. Samotech Ltd. (2018) 8 NWLR (Pt. 1620) 165; Olayioye v. Oyelaran 1 (supra), La Wari Furniture & Baths Ltd. v. FRN (supra). This is a confluence point where want of fair hearing and jurisdiction embrace themselves to vitiate proceedings that give birth to denial of fair hearing, see O.O.M.F. Ltd. v. NACB Ltd. (supra); Ovunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522; Achuzia v. Ogbomah (supra); Apeh v. PDP (2016) 7 NWLR (Pt. 1510 153; Aba v. Monday (2015) 14 NWLR (Pt. 1480) 569.
In the eyes of the law, nullity denotes: “Nothing; no proceeding; an act or proceeding in a case which the opposite party may treat as though it had not taken place; or which has absolutely no legal force or effect”, see Lasisi v. State (2013) 12 NWLR (Pt. 1367) 133 at 146, per Ngwuta JSC; Ezenwaji v. U.N.N. (supra); Mamman v. Hajo (2016) 8 NWLR (Pt. 1575) 411. The dire consequence of a nullity is far-reaching. If a decision or proceeding is soiled with nullity, it is void and taken as it was never given or made, see Okoye v. Nigeria Const. & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501; Bello v. INEC (2010) 8 NWLR (Pt. 1196) 342. Moreover, such a decision or proceeding, in the view of the law, bestows no enforceable right on its beneficiary party who possesses it nor does it impose any obligations on its victim party, see Ajiboye v. Ishola (2006) 13 NWLR (Pt. 998) 628; Oyeneyin v. Akinkugbe (2010) 4 NWLR (Pt. 1184) 265. The bounden duty of a Court is to set aside a null order ex debito justitiae in that it does not exist in law, see Mamman v. Hajo (supra); N.A.C.B. Ltd. v. Ozoemelam (2016) 9 NWLR (Pt. 1517) 376; Oyeyemi v. Owoeye (2017) 12 NWLR (Pt. 1580) 364.
The lower Court’s failure to hear the appellant’s applications before it, which cried for its attention in its file, was, with due respect, offensive to the law. It constituted a flagrant infraction of the appellant’s inalienable right to fair hearing as decreed in the sacrosanct provision of Section 36 (1) of the Constitution, as amended, see Otapo v. Sunmonu (supra); Odedo v. Oguebego (supra). On the strength of the inelastic position of the law, dissected above, the lower Court’s decision of 9th June, 2016 was trapped in the den of nullity. On this score, the law compels me to mow it down with the unbiased judicial sword of this Court. In effect, I dishonour the respondent’s learned counsel’s salivating invitation to endorse the lower Court’s injudicious exercise that was contemptuous of the law. Such will snowball into a judicial sacrilege that irritates the law. In the end, I have no option than to resolve the issue two in favour of the appellant and against the respondent.

My noble Lords, for the sake of completeness, the order to make when a person breaches a party’s unassailable right to fair hearing, donated to him in Section 36(1) of the Constitution, as amended, is not a moot point. It is firmly settled that: “once there is such a denial of the said right {right to fair hearing} the only order that could be made on appeal is one for re-trial or re-hearing. This is to enable the appellant to be properly heard,” see Kalu v. State (2017) 14 NWLR (Pt. 1586) 522 at 547, per Nweze, JSC; Danladi v. Dangiri (2015) 2 NWLR (Pt. 1442) 124; C.K. & W.M.C. Ltd. v. Akingbade (supra); Akingbola v. FRN (supra); Ahmed v. Regd Trustees, AKRCC (2019) 5 NWLR (Pt. 1665) 300; Fapohunda v. R.C.C.N. Ltd. (2019) 3 NWLR (Pt. 1658) 163. This hallowed and inelastic position of the law, known for its antiquity, makes mincemeat of the appellant’s solicitation to this Court to invoke its expansive power under Section 15 of the Court of Appeal Act and determine its applications. The extensive jurisdiction “Until it is awakened into action from its sleep by such a complainant, it remains a contended tiger sleeping on its lair”, see Ejowhomu v. Edok-Eter Ltd. (1986) 5 NWLR (Pt. 39) 1 at 35, per Aniagolu, JSC.

Furthermore, once an appellate Court intends to order, or orders, for a de novo hearing, the law forbids it from treating any other issues in the appeal or points that may arise at the rehearing proceedings, see C. K. & W.M.C. Ltd. v. Akingbade (supra); Ovunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522; Karaye v. Wike (2019) 17 NWLR (Pt. 1701) 355. I will pay due fidelity to this injunction of the law so as not to prejudice the issues that may crop up during the rehearing sessions.

On the whole, having resolved the decisive issue two in favour of the appellant, the destiny of the appeal is obvious. It is meritorious. Consequently, I allow the appeal. Accordingly, I set aside the decision of the lower Court, delivered on 9th June, 2016, for being a nullity. I remit the appellant’s two applications filed on 11th April, 2016, in Suit No. LD/ADR/265/2013, to the Chief Judge of Lagos State for re-assignment to another Judge, other than O. A. Ipaye, J., for fresh hearing. The parties shall bear the respective costs they incurred in the prosecution and defence of the fruitful appeal.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I have read in advance the draft copy of the lead judgment just rendered by my learned brother Obande Festus Ogbuinya, JCA. For the more detailed analysis and the reasoning contained in the lead judgment, I agree entirely with the conclusion that the Appeal is meritorious and is hereby allowed by me. I abide by the consequential orders contained therein.

PETER OYINKENIMIEMI AFFEN, J.C.A.: I had the advantage of reading in draft, the judgment just delivered by my learned brother, Obande Festus Ogbuinya, JCA. I agree with the judicial reasoning and conclusions reached on the issues raised in this appeal, which I adopt as my own. I hereby record my concurrence with the leading judgment, and abide by the consequential orders.

Appearances:

Ayodele Kusamotu, Esq., with him, E. Dagana, Esq. and Adeyemi Akingbade, Esq. For Appellant(s)

V. A. Jonah, Esq. For Respondent(s)