INCORPORATED TRUSTEES OF THE ROMAN CATHOLIC DIOCESE OF MINNA & ANOR v. SHAIBU & ANOR (2022)

INCORPORATED TRUSTEES OF THE ROMAN CATHOLIC DIOCESE OF MINNA & ANOR v. SHAIBU & ANOR

(2022)LCN/16864(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Monday, November 28, 2022

CA/A/1125/2019

Before Our Lordships:

Haruna Simon Tsammani Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Bature Isah Gafai Justice of the Court of Appeal

Between

1. INCORPORATED TRUSTEES OF THE ROMAN CATHOLIC DIOCESE OF MINNA 2. ST. CLEMENTS’ CATHOLIC SECONDARY SCHOOL, GBAIKO APPELLANT(S)

And

1. MR. ALEXANDER OJONUGWA SHAIBU (Suing As A Beneficiary Of The Estate Of Late Baba Benjamin Shuibu) 2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) RESPONDENT(S)

RATIO

WHETHER OR NOT HEARING NOTICE IS TIED TO THE JURISDICTION OF ANY COURT TO HEAR AND DETERMINE A MATTER BEFORE IT

Now, it is the law that hearing notice is sine qua non to the jurisdiction of any Court to hear and determine a matter before it. Therefore, where a matter is adjourned to a particular date other than the date earlier adjourned to, the Court has a duty to notify the parties of the subsequent date. The Court should not act on the assumption that a party has been served at one stage or the other, therefore, he should be aware of all subsequent dates. See Compact Manifold & Energy Services Limited v. Pazan Services Ltd. (2019) LPELR-49221 (SC); Abdulhamid v. Babagana (2017) LPELR- 43393 (CA) and Apeh & Ors. v. PDP & Ors. (2016) LPELR – 40726 (SC). Thus in the case of Odega v. Olloh (2015) LPELR – 24568 (CA), this Court, per Ogunwumiju, JCA (as he then was) held that:
“Service of hearing notice is imperative where a party is not present in Court or duly represented… Failure to notify the party of the hearing of the matter renders the proceedings null and void as the Court lacks jurisdiction to entertain the matter. Let me state it clearly that the issuance of a Hearing Notice on a party is to intimate him of the hearing date which is very fundamental to the administration of justice as it confers on the trial Court the jurisdiction to entertain the matter. It is not for the Court to assume that the party must have been served the hearing notice or that he is aware of the date”. PER TASAMMANI, J.C.A.

THE POSITION OF LAW ON THE BEST METHOD OF PROVING SERVICE

It is trite law that, the best method of proving service is by the bailiff to swear to affidavit of service which is presented before the Court for its inspection. Where service is by counsel, an Affidavit of Service will be filed by the party effecting service. See Okesuji v. Lawal (1991) 1 NWLR (Pt. 170) 661 at 678; Chief Ime Ukut Udoka & Anor v. Innocent Bassey Urua (2013) LPELR — 22152 (CA) and Olorunyolemi & Anor. v. Akhagbe (2010) LPELR – 2597 (SC). In Utoo v. Feese & Anor. (2017) LPELR – 44037 (CA), this Court, per Otisi, JCA held as follows:
“When a Court orders hearing notice to issue, there must be proof that the hearing notice was actually served on the party. There must be evidence of receipt of same vide signature of the party personally or his counsel, or an affidavit of service sworn to by the person who effected the service…” PER TASAMMANI, J.C.A.

WHETHER OR NOT THE COURTS CAN RAISE AN ISSUE SUO MOTU

The law is settled that, though the Court may raise an issue suo motu, but the parties must be invited to have a say on the issue before same can be determined. Failure to hear counsel or the parties on an issue raised suo motu will result in breach of the parties’ fundamental rights to be heard. See Agbaeze & Anor. v. Customary Court, Item District & Ors. (2007) 7 NWLR (Pt. 1032) 196; A.I.C. Ltd. v. Ogun State Gov’t (2014) LPELR- 23385 (CA) and Stirling Civil Eng. (Nig.) Ltd. v. Yahaya (2005) 11 NWLR (Pt. 935) 181. PER TASAMMANI, J.C.A.

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Niger State High Court sitting in Minna, delivered by Maimuna A. Abubakar, J on the 25th day of October, 2019 in suit No: NSHC/MN/130/2018.

By a Writ of Summons filed on 21/5/2018 and Statement of Claim filed the same day, the Respondents who were the Plaintiffs sought the following reliefs:
(a) AN ORDER of this Honourable Court mandating the 1st Defendant to immediately liquidate her loan in the sum of N5,000,000.00 (Five Million Naira) only in favour of the Plaintiffs.
(b) AN ORDER of this Honourable Court mandating the Defendants to pay to the Plaintiffs the sum of N6,149,000.00 (Six Million, One Hundred and Forty-Nine Thousand Naira) only, being money for repayment of loan and monetary value of bags of cement supplied to the 2nd Defendant by the Plaintiff.
(c) AN ORDER of this Honourable Court, for the sum of N1,600,000.00 (One Million, Six Hundred Thousand) as professional fees and cost of this suit.

The 1st and 2nd Defendants/Appellants filed a Memorandum of conditional Appearance on 28/6/2018. This was followed by a Joint Statement of Defence which was filed on 11/12/2018 by leave of Court granted on the same day. It should be noted, however, that the Plaintiffs/Respondents had, on 7/6/2018 filed an Application seeking the following relief:
1. AN Order of summary Judgment against the Defendants as per the Plaintiff’s claim in the Writ of Summons and Statement of claim.
2. AND for such order or further orders as the Honourable Court may deem fit to make in the circumstances.

The motion was supported by a 37 paragraphs Affidavit deposed to by one Ette Ette Enobong, a Legal Practitioner in the Law Firm of Messrs Abalaka & Co. of Counsel for the Plaintiffs. Several documents were attached to the Affidavit but only one was marked as Exhibit “A”. The other documents were not marked as exhibits. A written Address was also filed along with the motion. Despite the grant of the Defendants’/Appellants’ Motion for extension of time to file the Joint Statement of Defence and the deeming order on the said Joint Statement of Defence, the trial Court proceeded to hear and determine the suit on the Plaintiffs’/Respondents’ motion for Summary Judgment. Upon consideration of the Motion for Summary Judgment, the trial Court held at page 146 of the Record of Appeal as follows:
“From the above authorities, it is my view that the application for Summary Judgment by the applicant counsel is meritorious. It is therefore based on the above reasoning that I hereby enter Summary Judgment against the Defendant/Respondent in favour of the Applicant/Plaintiff for the sum of N11,149,000.00 (Eleven Million One Hundred and Forty-Nine Thousand Naira) only”.

The Appellants were put out by the decision of the trial Court and accordingly filed this appeal.

The Notice of Appeal consisting of three (3) Grounds of Appeal was filed on 29/10/2019. Parties then filed and served Briefs of Arguments. The Appellants’ Brief of Arguments’ was filed on 10/12/2019. Therein, three (3) issues were formulated for determination as follows:
1. Whether the lower Court was right when it took the Respondents’ application for summary judgment without serving the Appellants hearing notice in respect thereof? (Ground 1)
2. Whether having regard to the circumstances of the case, the lower Court’s ruling/judgment subject of this appeal was not delivered without jurisdiction? (Ground 2)
3. Whether the lower Court was right when it granted the Respondents’ application for Summary Judgment without taking into account the Appellants’ defence and the Counter Affidavit/Written Address filed in opposition to the Respondent’s motion for summary judgment? (Ground 3).

The Respondents’ Brief of Argument was filed on 16/2/2021. The Respondents adopted the three issues raised for the determination of this appeal, by the Appellants.

Now on issue one (1), learned counsel for the Appellant contended that the Respondents who were the Plaintiffs in the Court below initiated the suit subject of this appeal by Writ of Summons together with a motion for Summary Judgment pursuant to Order 11 Rule 39 of the Niger State High Court (Civil Procedure) Rules. That, the Appellants upon being served, filed a Joint Statement of Defence, and a Counter Affidavit in opposition to the motion for Summary Judgment. That the matter was then adjourned to 7/3/2019 for hearing of the motion for Summary Judgment but before the date of the hearing, the learned trial Judge was assigned on a National assignment at the Election Petition Tribunal. That upon return of the learned trial Judge from the Election Petition Tribunal, the matter was fixed on 7/10/2019 for hearing of the motion for Summary Judgment. However, that the Appellants were not served any hearing Notice but the motion for Summary Judgment was heard and ruling delivered thereon in the absence of the Appellants.

Learned counsel for the Appellants then submitted that having failed to sit on 7/3/2019 due to the engagement of the learned trial Judge at the Election Tribunal, the trial Court had a duty to serve hearing notice on the Appellant’s upon resumption of the learned trial Judge and when the suit was further adjourned to the 7/10/2019. The cases of Mr. Gbenga Olorunfemi v. Nigerian Educational Bank Ltd. (2002) LPELR-7130 (CA) and Lt. Col. David Olusegun Juwape (Rtd.) v. Alhaji Ramon Sahui & Ors. (2017) LPELR – 43577 (CA) were then cited to submit that, failure of the trial Court to serve hearing notice on the Appellants before hearing of the motion for Summary Judgment, rendered the entire proceeding and the ruling delivered thereon on a nullity.

Learned counsel for the Appellants went on to submit that, the failure of the lower Court to serve hearing notice on the Appellants amounts to breach of the Appellants’ fundamental right to fair hearing as guaranteed by Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The case of Alh. Adisa Saka Ahmed v. Jimoh Adeyemi (2006) LPELR- 9870 (CA) was then cited in support, and to further submit that the trial Court was in grave error when it took the Respondents’ motion for Summary Judgment without ensuring that hearing notice was served on the Appellants. On that note, we were urged to set aside the decision of the trial Court for having been delivered in breach of the Appellants’ fundamental rights to fair hearing.

I have carefully read the arguments preferred by learned counsel for the Respondents in response to the submissions of learned counsel for the Appellants on issue one (1). I find that the arguments of learned counsel for the Respondents are way off the mark. The Respondents did not in any way answer to the issue of fair hearing raised by the Appellants. It should be noted that, Order 19 Rule 4(2) of the Court of Appeal Rules, 2021 stipulates that:
“The Respondent’s brief shall answer all material points of substance contained in the Appellant’s brief and contain all points raised therein which the Respondent wishes to concede as well as reasons why the appeal ought to be dismissed…”
It means therefore, that a Respondent has a duty to respond to the issues raised by the Appellant only. Thus, where the Respondent fails to respond to the issues raised by the Appellant, he will be deemed to have conceded to those issues. The duty of a Respondent in an appeal, is to counter the appellant’s arguments and not to embark on arguments that do not relate to or attack the Appellant’s arguments. It therefore means that where a Respondent fails or neglects to counter the issues raised by the Appellant in the Appellant’s brief of argument, such issue is deemed uncontested and accordingly conceded by the defaulting party. See Nwankwo v. Umaru Yar’adua & Ors. (2010) 12 NWLR (Pt. 1209) 518; Fulani M. v. State (2018) LPELR – 49614 (SC). Thus in Nwankwo & Ors. v. Yar’adua & Ors. (supra), the Supreme Court, per Onnoghen, JSC (as he then was) said:
“It is settled law that where an opponent fails or neglects to counter any argument or issues validly raised in the brief of argument or during oral presentation, the issue not so contested is deemed conceded by the defaulting opponent. I therefore, in the circumstances, hold that the 1st and 2nd Respondents by not reacting to the issue in question, have conceded the issue as formulated and argued by learned counsel for the Appellants”.
Standing on the above cited authority, I hereby find and accordingly hold that, the Respondents who did not at all respond to the issue of breach of the Appellants’ fundamental rights to fair hearing, have conceded that, there was in fact, such breach. Indeed, the record of appeal bears eloquent witness to that fact.

The record of appeal discloses that, the Writ of Summons was filed on 21/5/2018 together with the statement of claim. This was followed by the Motion for Summary Judgment which was filed on 07/6/2018. The Appellants then filed a Memorandum of Conditional Appearance on 28/6/2018; the very day the matter was mentioned in the trial Court. The parties were represented by counsel and the matter adjourned to 19/9/2018 for hearing of the Motion for Summary Judgment. However, on 13/9/2018, the Appellants filed a Joint Statement of Defence together with a Motion seeking for extension of time to regularize same. Motion was granted and the matter further adjourned to 12/12/2018 for hearing of the Application or motion. It should be noted that, the Court did not sit on the said 12/12/2018. However, on 11/2/2019, the case came up again before the learned trial Judge.

When the matter came up on the said 11/12/19, the parties were not in Court but Joe Abah; Esq appeared for the Defendants/Appellants. Mr. Joe Abah, Esq of counsel for the Defendants informed the Court that he had a motion to file Joint Statement of Defence, and a Counter Affidavit together with a Written Address in opposition to the motion for Summary Judgment. The Motion was granted and the processes were deemed as having been properly filed and served. The earlier statement of Defence filed on 12/9/2018 was withdrawn and struck out. The suit was then adjourned to 7/3/2019 for hearing. The Court did not sit on the said 7/3/2019 till the 07/10/2019. On that date, the Defendants/Appellants were neither in Court nor represented by counsel. One R. C. Aneke appeared as counsel for the Plaintiffs/Respondents and informed the Court that learned counsel for the Defendants/Appellants had been served. The Motion for Summary Judgment was then heard and adjourned to 18/10/2019 for ruling.

Now, it is the law that hearing notice is sine qua non to the jurisdiction of any Court to hear and determine a matter before it. Therefore, where a matter is adjourned to a particular date other than the date earlier adjourned to, the Court has a duty to notify the parties of the subsequent date. The Court should not act on the assumption that a party has been served at one stage or the other, therefore, he should be aware of all subsequent dates. See Compact Manifold & Energy Services Limited v. Pazan Services Ltd. (2019) LPELR-49221 (SC); Abdulhamid v. Babagana (2017) LPELR- 43393 (CA) and Apeh & Ors. v. PDP & Ors. (2016) LPELR – 40726 (SC). Thus in the case of Odega v. Olloh (2015) LPELR – 24568 (CA), this Court, per Ogunwumiju, JCA (as he then was) held that:
“Service of hearing notice is imperative where a party is not present in Court or duly represented… Failure to notify the party of the hearing of the matter renders the proceedings null and void as the Court lacks jurisdiction to entertain the matter. Let me state it clearly that the issuance of a Hearing Notice on a party is to intimate him of the hearing date which is very fundamental to the administration of justice as it confers on the trial Court the jurisdiction to entertain the matter. It is not for the Court to assume that the party must have been served the hearing notice or that he is aware of the date”.

In the instant case, it is apparent that there was no evidence of service of hearing notice on the Appellants when the Motion for Summary Judgment was heard on 7/10/2019. The learned trial Judge had the duty to confirm and assure himself that the Appellants had been served hearing notice before proceeding to hear the motion for Summary Judgment. In the instant case, it was learned counsel for the Plaintiffs/Appellant who informed the Court that:
“1st & 2nd Defendant (sic) not in Court, even though the counsel representing them was put on notice and he acknowledge receipt, matter for today was for us to take pending application”.

It would be seen that though learned counsel for the Plaintiffs/Appellant informed the Court that learned counsel representing the Defendants/Appellants had been served and acknowledged receipt of service, no evidence of such service was presented except the ipse dixit of the Respondents. It is trite law that, the best method of proving service is by the bailiff to swear to affidavit of service which is presented before the Court for its inspection. Where service is by counsel, an Affidavit of Service will be filed by the party effecting service. See Okesuji v. Lawal (1991) 1 NWLR (Pt. 170) 661 at 678; Chief Ime Ukut Udoka & Anor v. Innocent Bassey Urua (2013) LPELR — 22152 (CA) and Olorunyolemi & Anor. v. Akhagbe (2010) LPELR – 2597 (SC). In Utoo v. Feese & Anor. (2017) LPELR – 44037 (CA), this Court, per Otisi, JCA held as follows:
“When a Court orders hearing notice to issue, there must be proof that the hearing notice was actually served on the party. There must be evidence of receipt of same vide signature of the party personally or his counsel, or an affidavit of service sworn to by the person who effected the service…”

In the instant case, there is no evidence of service of hearing notice on the Defendants/Appellants or their counsel when the Motion for Summary Judgment was heard. This therefore, resulted in breach of the Appellants’ fundamental rights to fair hearing. The effect is that the entire proceeding and any decision or judgment delivered thereon, is rendered null and void for want of jurisdiction. See Ovunwo & Anor. v. Woko (2011) 17 NWLR (Pt. 1277) 522; Nwabueze v. People of Lagos State (2018) 11 NWLR (Pt. 1630) 201 and Wema Bank Plc. v. Mr. Abraham Olotu & Anor. (2022) LPELR – 57679 (SC). On that note, it is my view, which I hold, that the learned trial Judge erred, leading to a breach of the Appellant’s fundamental right to fair hearing when he heard and determined the Motion for Summary Judgment without affording the Appellants the opportunity to be heard. Accordingly, issue one (1) is hereby resolved in favour of the Appellants.

Related to the issue resolved above, is issue three (3). On this issue, learned counsel for the Appellants contended that, the Plaintiffs/Respondents commenced the suit subject of this appeal vide a Writ of Summons; and filed alongside the Writ was a Motion for Summary Judgment pursuant to Orders 11 and 39 and the Rules of the Court below. That the Defendants/Appellants filed a Joint Statement of Defence; and Counter Affidavit in opposition to the Motion for Summary Judgment. That in that respect, issues were duly joined in both the statement of claim and Motion for Summary Judgment. That however, the learned trial Judge failed to consider the Joint Statement of Defence filed by the Appellants; and the Counter Affidavit/Written Address filed in opposition to the Respondents’ Motion for Summary Judgment. It was then submitted that, the trial Court had a duty to consider the processes filed by the Appellants before coming to a conclusion one way or the other on the Motion for Summary Judgment. The cases of Lt. Col. David Olusegun Juwape (Rtd.) v. Alhaji Ramon Sanni & Ors. (2017) LPELR – 43517 (CA) and All Progressive Congress v. Hon. Godwin Etim John & Ors. (2019) LPELR-47003 (CA) were then cited to submit that, the failure of the lower Court to consider the processes filed by the Appellants rendered the proceedings a nullity.

Learned counsel for the Appellants went on to submit that, the Court below, granted extension of time to the Appellants to file their Joint Statement of Defence, and consequently deemed same as having been filed and served. That in the circumstances, the judgment on the Motion for Summary Judgment without recourse to the Appellants’ processes amounted to a gross violation of the Appellant’s right to fair hearing. We were accordingly urged to resolve this issue in favour of the Appellants and allow the appeal.

In response, learned counsel for the Respondents contended that, the trial Court was right when it granted the Appellant’s application for Summary Judgment without taking into account the Appellants’ defence and Counter-Affidavit/Address filed in opposition to the Application for Summary Judgment. That the learned trial Judge rightly found that the Defendants/Appellants have no defence because the Appellants had no defence to the claim against them. We were accordingly urged to resolve this issue against the Appellants and to dismiss the appeal.

It is not in dispute that, the Plaintiffs/Respondents initiated the action in the trial Court by way of a Writ of Summons. The Defendants/Appellants were granted extension of time to, and did file a Joint Statement of Defence. However, the Plaintiffs/Respondents had, filed a Motion for Summary Judgment to which the Defendants/Appellants filed a Counter Affidavit in opposition thereto. The learned trial Judge then proceeded to hear and determine the suit on the Motion for Summary Judgment pursuant to Order 11 of the Niger State High Court (Civil Procedure) Rules, 2012. A close look at the said Order 11 Rules 1, 4 and 5 of the Niger State High Court (Civil Procedure) Rules (supra) will be helpful:
“Order 11:
1. Where a Plaintiff believes that there is no defence to his claim, he shall file with his Originating Process the statement of claim, the exhibits, the depositions of his witnesses and an application for summary judgment, which application shall be supported by an affidavit stating the grounds for his belief and a Written Address in respect thereof.
4. Where a party served with the processes and documents referred to in Rule 1 of this Order intends to defend the suit he shall, not later than. the time prescribed for defence, file-
(a) his statement of defence;
(b) depositions of his witnesses;
(c) the exhibits to be used in his defence; and
(d) a Written Address in reply to the application for summary judgment.
5. (1) Where it appears to a good defence and ought to be permitted to defend the claim, he may be granted leave to defend.
(2) Where it appears to a Judge that the defendant has no good defence, the Judge may thereupon enter judgment for the Plaintiff.

It is apparent in this case that the parties complied with the requirements of Order 11 Rules 1 and 4. The Plaintiffs/Respondents had filed their statement of claim in line with Order 11 Rule 1 of the Niger State High Court (Civil Procedure) Rules, 2012. An Application for Summary Judgment supported by an Affidavit and a Written Address was also filed alongside the statement of claim. The Defendants/Appellants also respondent in line with the requirements of Order 11 Rule 4 (supra). They (Appellants) also filed a Counter Affidavit and Written Address in opposition to the Application for Summary Judgment.

In determining the Motion for Summary Judgment, the learned trial Judge raised, suo motu, the issue that the Appellants had not paid N200.00 per day for default in filing their processes, i.e. statement of defence and Counter Affidavit out of time, and consequently, struck out their defence. In doing that, the learned trial Judge had held at page 144 lines 13 – 145 line 3 of the Record of appeal as follows:
“In the instant case, the defendant’s counsel was at default of late appearance which Order 9 Rule 5(i) states that when a defendant files an appearance after the time prescribed in the originating process, he shall pay to the Court an additional fee of N200.00 for each day of default Rule 11 states that in the course of any proceedings subsequent to entry of appearance, if a counsel default in the filing of process within time, such counsel shall be liable to pay the sum of N500 as penalty for each day of default. Finally Order 5 Rule 1, of Niger State High Court (Civil Procedure) Rules, 2018 provides for non-compliance with the rules that in beginning or purporting to being (sic: begin) any proceeding, there has by reason of anything done or left undone, been a failure to comply with the requirement of these rules, the failure shall nullify the proceedings. It is in view of this, I find it proper to invoke the provision of Order 11 Rule 5(2) of Niger State High Court (Civil Procedure) Rules, 2018, that I submit to the learned Applicant/Plaintiff counsel that defendant has no good defense and also not comply with the rules for default of filing of process within time and not paying any default fee as prescribed by the rules of the Court”.

It is apparent from the portion of the ruling of the trial Court quoted above, that the learned trial Judge determined the suit, not because there was no defence, or good defence but on the ground that the said defence was filed in default. As I noted earlier, the issue of lack of payment of default fee was raised suo motu by the learned trial Judge. The law is settled that, though the Court may raise an issue suo motu, but the parties must be invited to have a say on the issue before same can be determined. Failure to hear counsel or the parties on an issue raised suo motu will result in breach of the parties’ fundamental rights to be heard. See Agbaeze & Anor. v. Customary Court, Item District & Ors. (2007) 7 NWLR (Pt. 1032) 196; A.I.C. Ltd. v. Ogun State Gov’t (2014) LPELR- 23385 (CA) and Stirling Civil Eng. (Nig.) Ltd. v. Yahaya (2005) 11 NWLR (Pt. 935) 181. I therefore hold that, the learned trial Judge lacked the competence to have raised the issue of payment of default fees suo motu, and proceed to pronounce on same with damming consequences on the Appellants without giving the parties an opportunity to be heard on it. In doing that, the learned trial Judge violated the Appellants’ constitutionally guaranteed rights to fair hearing.

To make matters worse, the Appellants had filed a Motion on Notice, seeking enlargement of time to file their Joint Statement of Defence, and Counter-Affidavit/Written Address in opposition to the Motion for Summary Judgment. The said Motion was heard and granted. Consequently, the Defendants/Appellants’ Joint Statement of Defence including the Counter Affidavit/Written Address were deemed properly filed and served. Those processes having been deemed filed and served, the learned trial Judge had no vires to revisit the issue of competence of those processes again. The Court at that stage had become functus officio. By revisiting the issue, the learned trial Judge failed to consider the defence duly and validly placed before the Court. By so doing, the learned trial Judge denied the Appellants of their fundamental rights to fair hearing. The result is that, the entire proceedings of the trial Court including the ruling delivered on the 25th day of October, 2019 is invalid, null and void.

Having held as above, it is my view that the appeal is meritorious. It is accordingly allowed. Consequently, the ruling of the Niger State High Court of Justice delivered on the 25th day of October, 2019 in Suit No: NSHC/MN/130/2018 is hereby set aside. I order that the suit be remitted to the Chief Judge of Niger State, to be heard de novo by another Judge other than Maimuna A. Abubakar, J.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have been afforded in advance, a copy of the leading judgment just delivered by lord Haruna Simon Tsammani, PJCA, I have taken time to read through the Record of Appeal. I have also reviewed the submissions made in the appellate briefs and the issues canvassed therein. I agree completely with the consideration, reasoning and resolution of the issues in the lead judgment, which I hereby adopt as mine. I have nothing more useful to add.

BATURE ISAH GAFAR, J.C.A.: I have before now read in draft, the judgment delivered by my learned brother Haruna Simon Tsammani, JCA. I agree entirely with the reasonings expressed therein and the conclusion thereby reached.

I adopt those reasonings as mine; by which I too find merit in this appeal. Accordingly, I join my learned brother in setting aside the proceedings of the lower Court having been conducted behind the Appellants’ back and in flagrant violation of their fundamental rights to fair hearing guaranteed to them under the provisions of Section 36 of the Constitution FRN 1999 as amended.

I abide by the consequential Orders made in the leading judgment.