IYABO ISIAK & ANOR V. ALHAJI SAKA OPOBIYI (2012)

IYABO ISIAK & ANOR V. ALHAJI SAKA OPOBIYI

(2012)LCN/5237(CA)

In The Court of Appeal of Nigeria

On Thursday, the 17th day of May, 2012

CA/IL/38/2007

RATIO

PRACTICE AND PROCEDURE: THE POSITION OF LAW ON THE PARTICULARS OF ERROR IN AN APPEAL

FUNDAMENTAL RIGHT: THE CONCEPT OF FAIR HEARING

The concept of fair hearing, a synonym of fair trial, a common place in the Nigerian legal system, connotes giving parties to any matter, be it civil or criminal, an equal opportunity and level playing ground to present their cases in a court of law. It is an inviolate constitutional right, engrained in section 36(1) and (6) of the 1999 Constitution, as amended, which gives a party the right to ventilate his grievances in a court of law on the premise of the twin concrete pillars of natural justice to wit: audi alteram partem – hear the other side – and nemo judex in causa sua – no one should be a judge in his own cause. Where a party’s right to fair hearing is trampled on, then the whole proceedings, no matter the volume of brilliance and diligence injected into them, would be eclipsed by a nullity. This is a confluence area where lack of jurisdiction and lack of fair hearing embrace themselves as both strip the courts of the requisite jurisdiction to adjudicate over cases. It is concerned with proper procedure and, totally, divorced from correctness of a decision. The litmus test of observance of this inviolable principle is that a fair-minded or reasonable person who watched the proceedings should conclude that the court was fair in dishing out justice to parties. A party’s right to fair hearing encompasses, inter alia, the right to; be present throughout the proceedings and hear all evidence against him, cross-examine or contradict all witnesses that testify against him, have read before him all documents tendered in evidence, have disclosed to him the nature of all relevant evidence except in recognized exceptions, know the case he will meet at the hearing and have adequate opportunity to prepare his defence, give evidence himself, call witnesses and make oral submissions. These attributes of fair hearing have been noted in a battery of judicial authorities, see Nwanegbo vs. Oluwole (2001) 37 WRN 101; Kim vs. State (1992) 4 NWLR (Pt. 233) 17; FRN vs. Akubueze (2010) 17 NWLR (Pt. 1223) 525; Newswatch Comm. Ltd. Vs Atta (2006) 12 NWLR (Pt. 993) 144; Agbiti vs. Nigerian Navy (2011) 4 NWLR (Pt. 1236) 175; Chukwuma vs. FRN (2011) 13 NWLR (Pt. 1264) 391; S & D Const. Co. Ltd. Vs. Ayoku (2011) 13 NWLR (Pt. 1265) 487; Ovunwo vs. Woko (2011) 17 NWLR (Pt. 1277) 522. PER. OBANDE OGBUINYA, J.C.A

PRACTICE AND PROCEDURE: ON THE MEANING OF JUDGMENT ON THE MERIT

I am emboldened in my view by the meaning of judgment on the merit as crafted by Oputa, JSC, in the case of U.T.C. (Nig.) Ltd. vs. Pamotei (1989) 2 NWLR (Pt. 103) 244 at 294-295 when he succinctly observed. “… A judgment on merit is one rendered after argument and investigation, and when it is determined, which party is in the right, as distinguished from a judgment rendered upon some preliminary or formal or mere technical point, or by default without trial. A judgment on the merits is thus a decision that was rendered on the basis of the evidence led by the parties in proof or disproof of issues in controversy between them. Normally, a judgment based solely on some procedural error is not, as a general rule, considered as a judgment on the merits. A judgment on the merits is therefore one arrived at, after considering the merits of the case-the essential issues, the substantive rights presented by the action, as contra-distinguished from mere questions of practice and procedure… A judgment on the merits is thus one that takes congnizance of the true bearing of the law on the rights of the parties where pleadings have been filed, issues are settled on those pleadings and the rights of the parties are decided on the resolution of those issues. Where this happens, the ensuing judgment is on the merits”. See, also, Oyegun vs. Nzeribe (2010) 7 NWLR (Pt. 1194) 577; Ogundoyin vs. Adeyemi (supra). A case not heard on the merits smacks of denial of fair hearing, see Gambo vs. Ikechukwu (2011) 17 NWLR (Pt. 1277) 561.” PER. OBANDE OGBUINYA, J.C.A.

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

OBANDE OGBUINYA Justice of The Court of Appeal of Nigeria

Between

1. IYABO ISIAK
2. ABDULRASAQ SHUAIB Appellant(s)

AND

ALHAJI SAKA OPOBIYI Respondent(s)

OBANDE OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal stemmed from the ruling of the Kwara State High Court, Ilorin Division, presided over by Hon. Justice J. F. Gbadeyan, delivered on 01/12/2004 dismissing the appellants’ application to set aside the judgment of the lower court delivered on 26/03/2004.
The facts of that case, which culminated into this appeal, are straight forward. On 14/06/2001 the appellants, as the plaintiffs, sued the defendant, as the defendant, in the lower court in suit No. KWS/96/2001 wherein, they, the appellants, claimed against the respondent for a declaration of entitlement to a statutory right of occupancy, trespass, injunction and damages over a parcel of land situated, lying and being at Ita-Ama close-next to the fence of Pakata Dispensary and Maternity on the North-side Angle in Ilorin West Local Government Area. In an expected reaction to the appellants’ action, the respondent entered an appearance, by dint of an application, and subsequently filed a statement of defence. The appellants, perhaps in order to leave no stone unturned, filed a reply to the respondent’s statement of defence.
Thereafter, the lower court proceeded to trial of the matter. In the course of the trial proceedings, the appellants fielded five (5) witnesses who were duly cross-examined by the respondent. Later on, the respondent filed an application, on 24/01/2003, for an order of the lower court to recall the appellants’ fifth witness, PW5, who had concluded his testimony on 18/11/2003. The appellants, vehemently, opposed the application which was duly heard and argued on 28/01/2003. In a considered ruling delivered on 19/03/2003, the lower court granted the application and thereby recalled PW5 for further cross-examination by the respondent and adjourned the case to 23/04/2003 and 24/04/2003 for that purpose.
After the hearing and ruling on that application, the case suffered several adjournments wherein the appellants were not in court nor were they represented. The respondent on 03/03/2004, opened his defence to the action and closed same on 04/03/2004 after calling four (4) witnesses who were not cross-examined by the appellants due to their absence from the proceedings. The respondent filed his final written address on 11/03/2004 and adopted same on 18/03/2004. On 26/03/2004, the lower court handed down its decision in which it dismissed the appellants’ suit.
Sequel to that judgment, the appellants, as applicants, applied on 13/07/2004 to the lower court to set aside same on the ground that it was not on the merit. The application, which was duly heard on 01/12/2004 was, strenuously and stoutly, opposed by the respondent. On that same day, 01/12/2004, the lower court ruled on the application thus: “This court became functus officio on 26/3/2004 when it delivered the judgment and no longer has the power to set aside the decision which is decision on merit…. This application is hereby dismissed.”
The appellants were dissatisfied with the ruling. Consequently, they filed a notice of appeal on 6/12/2004, hosting two grounds of appeal encapsulated on pages 85 – 86 of the record, wherein they prayed this court for “An order setting aside the entire proceedings in default of Notice or set aside the judgment of the High Court in this case thereby allowing the plaintiff to cross-examine the defence witnesses”. To put the record straight, during the pendency of the appeal, the original first and third appellants and the second respondent died. The original first appellant, Kusumu Saruku, was substituted with the present first appellant, Iyabo Isiak, vide an order of this court made on 14/4/2011 at the behest of the appellants.
The appeal was heard on 05/03/2012. On that day, learned counsel for the appellants, Abdulhamid Rabiu, Esq. adopted the appellants’ brief of argument, filed on 18/05/2011, but deemed filed on 01/06/2011, and the appellants’ reply brief of argument, filed on 30/12/2011, but deemed filed on 05/03/2012, as representing his arguments in support of the appeal. He urged the court to allow the appeal. On the other hand, learned counsel for the respondent, Akin Akintoye II, adopted the respondent’s brief of argument, filed on 29/06/2011, as representing his submissions against the appeal. He prayed the court to dismiss the appeal.
During the hearing of the appeal, on 05/03/2012, and before the adoption of the parties’ briefs of arguments, learned counsel for the respondent intimated the court that the respondent filed a notice of preliminary objection, on 22/12/2011, against the appeal. Learned counsel apprised the court of the abandonment and concession made by the appellants, in paragraph 2.04 of their reply brief of argument, that their ground 2 and issue 2 and 3 were incompetent. Learned Counsel urged the court to strike them out based on that concession. On his part, learned counsel for the appellant admitted the abandonment and concession, a good and rare element of advocacy to be hold, and was not opposed to the application of the learned counsel for the respondent. Consequent upon those admission, abandonment and non-opposition, the court struck out the appellants’ ground 2 and issues 2 and 3 on grounds of incompetence. That, as shall unveil anon, pruned down or down sized the grounds and issues in contentions in the preliminary objection and the appeal respectively.
The law mandates me to deal with the respondent’s preliminary objection in order to determine the fortune of the appeal, see Akpan vs. Bob (2010) 17 NWLR (Pt.1223) 421; Odedo vs. INEC (2008) 17 NWLR (Pt.1117) 554. B.A.S.F. (Nig.) Ltd. vs. Faith Enterprises Ltd. (2010) 4 NWLR (Pt.1183) 104; SPDCN Ltd. vs. Amadi (2011) 14 NWLR (Pt.1266) 157; Efet vs. INEC (2011) 7 NWLR (Pt.1247) 423. In keeping with the law, I will tackle the respondent’s preliminary objection first.

THE PRELIMINARY OBJECTION
As already noted, the respondent, on 22/12/2011, filed a notice of preliminary objection and its particulars are, for ease of appreciation and reference, hereunder reproduced, verbatim or literatim, thus:
“i. All the particulars (I, II and III) of the 1st ground of appeal do not relate to the 1st ground of appeal and that they do not reflect the decision of the court appealed against. Hence, the ground is incompetent as they cannot stand alone.
ii. The 2nd Ground of appeal does not arise from the ruling of the lower court appealed against.
PARTICULARS OF OBJECTION
i. Ground one alleges error in law and misdirection because the judge held that he cannot set aside his own judgment.
ii. Particulars: (i) of the said ground already assumed that the judgment is not on merit contrary to what the ground alleged and contrary to the holding of the lower court.
iii. Particulars (ii) & (iii) of the said ground do not relate to the ground and the decision appealed against as they alleged failure to cross-examine witness.
iv. There is nothing in the ruling of the lower court where it held or could be implied to have held that the application of the Appellant is related, as alleged in ground two.
v. When something is said to be belated, what is meant is that the time for the doing of the thing has expired. The lower court did not make that decision.
vi. The issues formulated for determination by the Appellant do not arise from any competent ground of appeal.
vii. Issues for determination cannot be more in number than the grounds of appeal from which they are formulated. There are only two grounds of Appeal.
viii. The Appellants failed to indicate from which grounds they have formulated their issues for determination.”

I had already observed, a short while ago, that the appellant’s ground 2 and issues 2 and 3 were struck out during the hearing of the appeal, on the strength their counsel’s concession of their incompetence. With that expunction, the only relevant and subsisting ground in the appellant’s preliminary is ground (i) with its relevant particulars. To this end, I will restrict my duty to taking the arguments of parties on that ground 1 and resolution of same as anything in excess of that will smack of academic exercise and a stupendous waste of scarce judicial time.
On that ground 1, learned counsel for the respondent/objection submitted that the particulars accompanying the appellants’ first ground of appeal were most incompetent. He explained that the purpose of particulars in a ground of appeal was to explain the complaints against the decision of the lower court as contained in the ground of appeal. He cited the cases of Oloruntoba Oju vs. Abdul-Raheem (2009) 39 NSCQR 105; Aribo vs. CBN (2011) All FWLR (Pt.554) 104 at 117 to support his submission. He maintained that all the particulars in the first ground of appeal, as stated by the appellants, did not arise from the said ground and were incompetent. He added that those particulars did not arise from the decision appealed against.
Learned counsel took the view that the appellant’s complaint from the ground was the refusal of the lower court to set aside its judgment which, according to them, was an error in law and misdirection while the particulars were saying something else. He noted that particular (i) of the said ground assumed that the judgment in the case was not on the merit which was not the complain in the ground nor did it arise from the decision appealed against. He insisted that what the lower court held was that the decision in the case was on the merit and there was no appeal against the decision. He urged the court, by the above reasoning and authorities cited, to hold that particular (i) of the said first ground was incompetent and to strike it out.
He further submitted that particulars (ii) and (iii) of the first ground of appeal were, seriously, defective. He reasoned that the appeal was against the ruling of the lower court delivered on 01/12/2004, as contained on pages 56 – 86 of the record of appeal, but those particulars did not complain against the ruling, but against the judgment delivered on 26/03/2004 which was not appealed against. He noted that the judgment was still standing and any attempt to incorporate certain particulars in the ground of appeal challenging a decision which was not appealed against should fail. He placed reliance on the case of Shell Petroleum vs. X.M. Federal Ltd. (2006) 7 SCNJ 536 at 543 on the subsistence and bindingness of decision of court on parties until set aside.
Learned counsel contended that the fulcrum of the complaints in particulars (ii) and (iii) of the first ground of appeal bordered, basically, on the examination and cross-examination of witnesses. He persisted that that did not form part of the decision appealed against and maintained that those particulars were incompetent and urged the court to strike them out. He concluded that when particulars (i) and (ii) and (iii) were struck out the first ground would have no pivot to stand and it should be struck out, too. He so urged the court.
For the appellants, their learned counsel argued, per contra, when he submitted that the first ground of appeal challenged the wrong assumption by the lower court that the judgment of 26/03/2004 was on merit contrary to the appellants’ position in their application that led to the ruling appealed against. He reasoned that the said ground, which sought to affirm the appellants’ position in the application, was competent. He relied on the case of Anyim MBD & Ors. vs. Agbafo Agu & Ors (1999) 9 SCNJ 84 at 94. He described particulars as “the conduit pipe that convey current and beam light on the grounds’ and contended that particulars (ii) and (iii) of the first ground substantiated it with statement of what transpired at the trial while particular (i) reinstated the legal position. He, then, persisted that particulars (i), (ii) and (iii) of ground one related and flew from the ground by elucidating and advancing the complaint in the ground. He, stoutly, argued that the particulars were valid and unassailable by any straining of the authorities cited by the respondent’s learned counsel.
Learned counsel further submitted that the appellant’s application, in the lower court, touched on the nature of the judgment delivered on 26/03/2004. He added that the events and circumstances leading to the said judgment were crucial in the consideration of the application and, by extension, the complaint or ground of appeal.

RESOLUTION OF THE PRELIMINARY OBJECTION
In considering the preliminary objection, a critical starting point perforce is to, carefully, examine the attacked ground one, with its concomitant particulars, with the strictures the respondent has passed on it. On this score, I will extract the said ground one and its particulars in the appellants’ notice of appeal, lodged on pages 85 – 86 of the cold printed record of appeal, in extenso thus:
“3. GROUND OF APPEAL
The Honourable Judge erred in law and misdirected when the (sic) held that he cannot set aside his own judgment in the case.
(i) It is trite that judgment not on the merit, as is the case under consideration, can be set aside.
(ii) In the case under consideration, the defence witnesses were not cross examined by the plaintiff due to the failure on the part of the defence/court to serve hearing notice on the plaintiff.
(iii) As at the last appearance of the plaintiff in the case, the plaintiff witness was supposed to be recalled by the defence only to, later, hit the plaintiff below the belt.”

Particulars of error in an appeal trace their procedural roots to the provision of Order 6 rule 2(2) of the Court of Appeal Rules, 2011. The provision decrees that a ground of appeal which alleges error in law or misdirection shall state the particulars of such error or misdirection clearly. Particulars of error or misdirection are invariably set out in dependently after a ground of appeal or factored/incorporated in the body of the ground of appeal. Particulars are meant to highlight the complaint against the judgment or decision on appeal. In other words, they specify and throw light on the alleged error or misdirection with a view to making it clear on how complaint would be canvassed in a bid to demonstrate the flaws and pitfalls in the relevant aspect of the decision sought to be impugned. It follows that particulars must flow or rediate from a ground of appeal, see UBA Ltd. vs. Achoru (1990) 6 NWLR (Pt. 156) 254; Nsirim vs. Nsirim (1990) 3 NWLR (Pt. 138) 285; Osasona vs. Ajayi (2004) 14 NWLR (Pt. 894) 527, Ogbolo vs. Ogbolo (supra).
Bearing the above functions and incidents/ingredients of particulars in mind, I have married the appellants sole ground of appeal, reproduced above, with its particulars with a view to ascertaining whether the latter are at variance with the former. The purport of the said ground of appeal is that the lower court goofed, judicially, when it held that it could not set aside its judgment delivered on 26/03/2004. The first particular, particular (i), is to the effect that a judgment that is not on merit, which is the kernel or hub of the appellants’ grievance, can be set aside by the court that gave it. The second particular, particular (ii), goes further to marshal out the reason why the lower court ought to have set aside its decision, id est, that the appellant did not cross-examine the respondent’s witnesses nor did the court or the respondent serve them with hearing notice. The third particular, particular (iii), indicates that the appellants’ witness, PW5, who the court ruled to be recalled, was never recalled by the respondent and that that amounted to an unfair treatment to them, the appellants.
Given the objects of the three particulars, particulars (i), (ii) and (iii), highlighted above, I hold the humble view that there is no disconnect, latent or patent, between them, those particulars, and their “mother” the ground of appeal. Indeed, contrary to the dazzling submissions of the respondent, the particulars have amply performed their assigned legal duty or function of shedding light on the complaint against the decision, ruling of the lower court, which is sought to be decimated, by specifying the loose ends therein. Simply put, the particulars do not, in the least, run foul of the law to warrant me to jettison them out of the appellants’ notice of appeal. In sum, I decline, for want of lawful justification, the respondent’s inviting and tempting invitation to weed the particulars out of the notice of appeal. With that refusal, it is needless to say that both the said ground and its accompanying particulars are valid and sit pretty before this court.
Overall, in the light of the foregoing analyses, it seems clear to me that the respondent’s preliminary objection is devoid of any tinge of merit in it. In effect, it is a non-starter. Consequently, I overrule the preliminary objection and same is dismissed without costs to any of the parties.

THE APPEAL
Originally, the appellants, in their brief of argument, distilled three issues for determination of the appeal. Two of the three issues, issues two and three, were abandoned by them and struck out. Following the excision of those two issues, the appellants are left with issue one, a solitary issue, which reads.
“1. Whether or not the judgment of 26/03/2004 was a judgment on the merit, if not whether the court thereby became functions (sic) officio.”
On his part, the respondent, in his brief of argument crafted a lone issue for determination of the appeal which states:
“Whether from the circumstances of this case, the lower court can set aside/overrule its final judgment.”
I have situated the appellants’ remnant single issue with the respondent’s mono issue for determination of the appeal. I have, also, given an intimate reading to the two sets of issues. In my view, the two issues are the same in substance, one a clone of the other. On this score, I will consider the appeal using the appellants’ singular issue for determination, more so when they are the persons peeved by the lower court’s ruling.
ARGUMENT ON THE ISSUE
On the issue, learned counsel for the appellant submitted that besides the proceedings of 22/10/2001 to 19/03/2003, found on pages 57 – 68 of the record, in which the appellants’ counsel participated, all other proceedings from 24/09/2003 to 26/03/2004, found on pages 69 – 74 of the record, were conducted in the absence of the appellants and their counsel and without serving them hearing notice or order to do so. He further submitted that proceedings done in the absence of the appellants or their counsel and without notice could not be said to be on merit. He cited the case of Ogundoyin vs. Adeyemi (2001) 7 SCNJ 187 AT 188. He noted that the effect of that was that the appellants were excluded from trial and were denied the opportunity to cross-examine the defence (respondent’s) witnesses and to reply to the address of learned counsel for the respondent. He reasoned that the conduct of the trial smacked of punishment that ran counter to the object of court to do justice and not punish parties for their mistakes. He referred to the case of Wabsons Ltd vs. Mobil Oil Nigeria Ltd (1995) 7 SCNJ 267 at 277 to support his stand.
Learned counsel posited that the infraction occasioned by the non-service of notice on the appellants at the trial nullified the entire proceedings. He, then, insisted that the court was competent to set aside its judgment and it was not functus officio. He placed reliance on the case of ACB Plc vs. Losada (Nig) Ltd (1995) 7 SCNJ 158 at 168. Learned counsel, based on the above submissions, urged the court to allow the appeal.
For the respondent, his learned counsel argued that when a court gave a final decision on matter, in law, it became functus officio, citing the case of Ogolo vs. Ogolo (2006) 2 SCNJ 235 at 246 to buttress his argument. He persisted that the decision of the lower court, dated 26/03/2004, was a final judgment in that the trial took place and parties called witnesses to prove their respective cases. The appellants called five witnesses, while the respondent called four witnesses.
He reminded the court that the appellants were the plaintiff who initiated the action against the respondent, as defendant, before the lower court. He added that the appellants opened their case, called five witnesses and chose not to attend the court. He noted that several adjournments were made in their absence at the trial before the lower court allowed the respondent to open and close his case. He explained that the respondent filed his address when the appellants abandoned their own and in a considered judgment, wherein the appellants’ evidence were duly considered, the lower court dismissed their action. He insisted that the judgment was final and the same lower court, when it delivered it, lacked the vires to upturn it, replying on the case of Ogolo vs. Ogolo (supra).
Learned counsel further submitted that even where a competent court gave or delivered an order, ruling and or judgment and same riddled with flaws and errors, the court that delivered it would become functus officio and would not correct and or reverse same except on special cases where the rules of court allowed and which was not the situation in the case in hand. He relied on the case of O.C.O. of MV “G & C Admiral” vs. Adeniran (2007) All FWLR (Pt. 344) 187 at 197. He added that the option available to the appellants, if they were aggrieved by the final judgment of the lower court of 26/03/2004, was to appeal to a superior court and not to resort to the same court that delivered it to set it aside, citing the case of Ogolo vs. Ogolo (supra) in support of his submission. He further contended that judgment not appealed against would be binding on all the parties to it and that the ruling of the lower court, delivered on 01/12/2004, was valid and judgment of 26/03/2004 was final and it could not be set aside by it, the lower court. He placed reliance on the case of Shell Petroleum vs. X.M. Federal Ltd. (supra) at 543 to support his contention.
Learned Counsel conceded that hearing notice was vital in proceedings, but argued that it was not in the case in the lower court since the right to be served hearing notice would not be at large. He maintained that the appellants did not deserve to be served with any hearing notice because the case was theirs and they owed a duty of respect to the court to pursue their case diligently. He insisted that the attitude of the appellants, at the lower court, was condemnable as they literally abandoned their case on 28/01/2003, leaving the court and the respondent helpless until about one full year later, on 03/03/2004, when the respondent was permitted to open their case, with six adjournments in between the two dates. He noted that all those times, the respondent was coming to court but neither the appellants nor their counsel was in court for once; He persisted that that attitude was disrespectful to the court. In support of that view, he cited the case of So Mai Sonka Ltd. Vs. Adzege (2001) FWLR (Pt. 68) 1104 at 1121.
He took the view that the failure of the appellants to notify the lower court of their absence at all the adjournments was fatal to their case and a show of disrespect to the lower court and the entire process of administration of justice. He noted that the disrespect was after the appellants had called their witnesses; adding that the presumption was that they had thrown in the towel. Learned counsel relied on the case of S.O. Mai Sonka Ltd. Vs. Abzege (supra) at 1119 to further submit that the appellants were in court when the matter was adjourned for ruling on the respondent’s application on 28/01/2003, as shown on pages 66-67 of the record, and, surprisingly, without any reason, they since then did not come to court. He reiterated the point that the case was that of the appellant and that it was not the duty of the court to pursue them with hearing notice to come for their matter or that of an adverse party who was brought to court by the appellants. He repeated the point that the appellant had a duty to respect the court and that their conduct was a perfect example of abandoning a bad case. He cited the case of Anyanwu vs. Sagrani (2008) ALL FWLR (Pt.426) 1995 at 2005; Bana vs. Telepower (2006) 7 SCNJ 182 at 191 and 192 to support his view. He persisted that the lower court was functus officio after it had delivered its judgment on 26/01/2004. On the strength of the above submissions, learned counsel urged the court to dismiss the appeal.
On points of law, learned counsel for the appellant, in the appellants’ reply brief, merely launched vitriolic attacks on the issues for determination distilled by the respondent. I had, at the dawn or cradle of this appeal adjudged the respondent’s issue as a mirror of the appellants’ after I had juxtaposed them. On this premise of oneness, the appellants’ onslaught against that issue is one too many. I have seen nothing wrong with the issue to upset or disturb my earlier viewpoint. In the result, I will turn a blind eye to the appellants’ unwarranted attacks on the respondent’s issue for determination of the appeal.

RESOLUTION OF THE ISSUE
Flowing from the elegant/sterling submissions of both counsel, the hub of this one issue is whether or not the appellants’ right to fair hearing was breached during the proceedings in the lower court.
The concept of fair hearing, a synonym of fair trial, a common place in the Nigerian legal system, connotes giving parties to any matter, be it civil or criminal, an equal opportunity and level playing ground to present their cases in a court of law. It is an inviolate constitutional right, engrained in section 36(1) and (6) of the 1999 Constitution, as amended, which gives a party the right to ventilate his grievances in a court of law on the premise of the twin concrete pillars of natural justice to wit: audi alteram partem – hear the other side – and nemo judex in causa sua – no one should be a judge in his own cause. Where a party’s right to fair hearing is trampled on, then the whole proceedings, no matter the volume of brilliance and diligence injected into them, would be eclipsed by a nullity. This is a confluence area where lack of jurisdiction and lack of fair hearing embrace themselves as both strip the courts of the requisite jurisdiction to adjudicate over cases. It is concerned with proper procedure and, totally, divorced from correctness of a decision. The litmus test of observance of this inviolable principle is that a fair-minded or reasonable person who watched the proceedings should conclude that the court was fair in dishing out justice to parties. A party’s right to fair hearing encompasses, inter alia, the right to; be present throughout the proceedings and hear all evidence against him, cross-examine or contradict all witnesses that testify against him, have read before him all documents tendered in evidence, have disclosed to him the nature of all relevant evidence except in recognized exceptions, know the case he will meet at the hearing and have adequate opportunity to prepare his defence, give evidence himself, call witnesses and make oral submissions. These attributes of fair hearing have been noted in a battery of judicial authorities, see Nwanegbo vs. Oluwole (2001) 37 WRN 101; Kim vs. State (1992) 4 NWLR (Pt. 233) 17; FRN vs. Akubueze (2010) 17 NWLR (Pt. 1223) 525; Newswatch Comm. Ltd. Vs Atta (2006) 12 NWLR (Pt. 993) 144; Agbiti vs. Nigerian Navy (2011) 4 NWLR (Pt. 1236) 175; Chukwuma vs. FRN (2011) 13 NWLR (Pt. 1264) 391; S & D Const. Co. Ltd. Vs. Ayoku (2011) 13 NWLR (Pt. 1265) 487; Ovunwo vs. Woko (2011) 17 NWLR (Pt. 1277) 522.
Against the background of these hallmarks of fair hearing, the knotty question is: was the appellants’ right to fair hearing breached during the conduct of their case in the lower court? In order to do justice to this crucial query, I will pay a visit to the record of appeal, which houses the record of proceedings in the lower court, so as to be abreast of what transpired therein. In this wise, I have burrowed through the 87- page record of appeal. The relevant portions of what happened in the lower court are located on pages 66 -74 of the record of appeal and it is needful to pluck them out therefrom.
After the testimony of PW5, a surveyor, on 18/11/2002, the respondent applied to the court for his recall for further cross-examination. The application was duly heard and argued on 28/01/2003 and the lower court adjourned it to 04/03/2003 for ruling. The ruling was not delivered on that 04/03/2003 as there is no indication on record that the lower court sat on that day. The lower court delivered the ruling on 19/03/2003, but both the appellants and their counsel were absent from the court. Thereafter, the lower court adjourned the case to 23/04/2003 and 24/04/2003, on which dates it did not sit.
The matter came up on 29/09/2003-and the record of the lower court shows the following:
“24-9-2003
Parties absent
Chief M. A. Sanni SAN (N. A. A. Ajide) for the defendants.
Chief Sanni SAN:- This case is slated for continuation of hearing.
On 19-3-2003 learned for the plaintiff was absent. The case was then adjourned to 23 and 24-5-2003 for continuation. Your lordship was then away on a National Assignment. So also on 18-6-03. Mr. Ajide saw the counsel to the plaintiff and informed him of today’s sitting. His absence is in proper (sic). He should be given the last adjournment. Fresh hearing notice shall be issued and we will undertake to serve it. We ask for a date in October i.e. 29/10/2003.
Court: The plaintiff shall be given the last adjournment.
The case is adjourned to 29/10/2003 for continuation.
HON. JUSTICE J. F. GBADEYAN
JUDGE
29/09/2003.”
When the case came up on 29/10/2003, parties were absent and the appellants were not represented. At the instance of the respondent’s counsel, the matter was further adjourned to 11/11/2003 for continuation of hearing. There is no evidence on record that the lower court sat on that 11/11/2003. It came up on 03/12/2003, the appellants and their counsel were absent, and it was further adjourned to 27/01/2004 for defence. From 27/01/2004, it was further adjourned to 03/03/2004 for defence. On that 03/03/2004, the respondent opened his defence and called DW1 and DW2 and it was further adjourned to 04/03/2004 for continuation of the defence. On that 04/03/2004, the respondent called his last witnesses, DW3 and DW4 and closed his case and his counsel applied to file his written address on 11/03/2004 while the case was adjourned to 18/03/2004. On 18/03/2004, the learned counsel for the respondent adopted his filed written address and the matter was adjourned to 26/03/2004 for judgment. The lower court delivered its judgment on that 26/04/2004 and it dismissed the appellants’ case with N10,000.00 against them. Sequel to that, the appellants applied to the lower court to set aside its judgment and the application, which was duly heard, was dismissed, on 0/12/2004, with N5,000 costs against them. Hence, the appellants filed this appeal on 06/12/2004. It is, germane to place on record that in all the days aforementioned, except on 28/01/2003, both the appellants and their learned counsel were not present in the lower court.
It is also, significant to observe that the lower court did not deliver the ruling on the application to recall on the first/original date it was adjourned to, 04/03/2003, so as to impute to the appellants knowledge of the proceeding. Again, when it, eventually, handed down its ruling on 19/03/2003, it did not go further to notify the absent appellants about the next day of hearing via hearing notice. That was imperative in that there is no indication that the lower court sat on the scheduled first date of its delivery 04/03/2003.
When proceedings resumed in the lower court on 24/09/2003, the respondent’s learned counsel prayed it to issue fresh hearing notice on the appellants. Curiously and startlingly, the lower court did not grant or refuse that application, but, merely, adjourned the proceedings to 29/10/2003. In my view, the lower court ought to have granted that application and ensured, too, that hearing notice was served on the appellants. This is because, the lower court, as manifested in its record of 24/09/2003 already reproduced, was on a national assignment and heard the matter last on 19/03/2004 when it delivered the ruling on the application to recall PW5. It must be recalled that the lower court did not sit on 23/04/2003, 24/04/2003 and 18/06/2003 which were subsequent adjourned dates to 19/03/2004. From 19/03/2003, when the ruling was delivered, to 24/09/2003 when it came back from the national assignment, was over six months, a period that can be described as months in any judicial proceedings. On the subsequent adjourned dates of 29/10/2003, 11/11/2002 and 27/01/2004, the lower court did not transact any judicial business in respect of the matter. During and after the hearing of the respondent’s case, which took place on 03/03/2004 and 04/03/2004, the lower court did not put the appellants in the know about the proceedings until it delivered its judgment, on 26/03/2004, predicated on the sole written address of the respondent.
It seems clear to me that the lower court ought to have issued and served hearing notice on the appellants during the conduct of the proceedings in that case, particularly on 24/09/2003 when it sat after its national assignment. Indeed, service of hearing notice on the appellants was sine qua non for the continuation of hearing in the matter. It would have been unnecessary to issue and serve hearing notice on the appellants if the lower court sat continuously from 04/03/2003 to 26/03/2004 and transacted judicial business on each of those days. Contrariwise, the lower court sat in fits and starts and in spasmodic manner to warrant issuance of hearing notice on the appellants to ignite the proceedings any time it was in abeyance or in incubation.
Where there is need to serve hearing notice and it is not served on the deserving party, any decision reached thereafter is mired in a nullity. The reason is obvious. The right of fair hearing of the deserved party has been infracted by the court. Thus, in the case by Mbadinuju vs. Ezuka (1994) 10 SCNJ 109 at 121 – 122, Ogundare, JSC, stated:
“The parties and their counsel were absent in court when the motions were called although the defence counsel subsequently put in appearance. There is nothing on record to show whether the parties and/or their counsel were served with hearing notice for 13/2/78. Neither is there anything on record to show that the parties were served with hearing notice that the main suit itself would be put on the court’s list for that day. In the absence of such proofs, it will be difficult to conclude the parties knew of the proceedings for that day…. Surely for the trial judge to strike out the two motions before him without first ensuring that parties went served hearing notices for 13/2/78, his order is a nullity.
It is apparent from the proceedings of 21/2/78 that even as at that day the plaintiff’s motion for extension of time had not been served on the defendant. In my respectful view, the trial court had no jurisdiction to hear the two motions before it on 13/2/78 and to strike them out before each was served.”
The above analyses, especially the decision in the case of Mbadinuju vs. Ezuko (supra), make mince meat of the sterling submissions of the respondent’s counsel herein. To begin with, the decision of this court, the court of Appeal, on So Mai Sonka Ltd. vs. Adzege (supra), on which the respondent’s learned counsel placed high premium on this point, must, willy-nilly, bow to the superior decision of the Supreme Court in Mbadinuiu vs. Ezuka (supra) on the basis of stare decisis. Moreover, the facts and circumstances of that case, Adzege’s, are not on all fours with the case in hand for me to employ the doctrine of stare decisis here. In other words, the facts of the two cases are distinguishable so that Adzege’s case (supra) is, de jure, inapplicable here.
It remains to thrash out the nagging tangential issue as to whether or not the decision of the-lower court was on the merit. The parties herein, in their briefs of argument, expressed discordant views on the point and each party made a meal of his viewpoint. I had reached a finding which I have no cause to disturb, that the appellants were entitled to be served with hearing notice during the hearing of the case. It is axiomatic, grounded on the above extracted record of proceedings in the lower court, that the appellants did not cross-examine the respondent’s four witnesses ‘nor did they address the court, either orally or by filing written address, before the lower court delivered its judgment dismissing their case. Both points, to say the least, impinge on and offend the appellants’ inviolable right to fair hearing. It flows from the above, especially the non-cross-examination of the respondent’s witnesses by the appellants, that the judgment of the lower court, delivered on 26/03/2004, was far from being a decision on the merit. This is because, it did not take into account or cognisance of the appellants’ statutory and constitutional right to cross-examine the respondent’s witness as mandated by the provision of section 36 of the 1999 Constitution, as amended, and section 215 of the Evidence Act, 2011. If anything, it was judgment in default.
I am emboldened in my view by the meaning of judgment on the merit as crafted by Oputa, JSC, in the case of U.T.C. (Nig.) Ltd. vs. Pamotei (1989) 2 NWLR (Pt. 103) 244 at 294-295 when he succinctly observed.
“… A judgment on merit is one rendered after argument and investigation, and when it is determined, which party is in the right, as distinguished from a judgment rendered upon some preliminary or formal or mere technical point, or by default without trial. A judgment on the merits is thus a decision that was rendered on the basis of the evidence led by the parties in proof or disproof of issues in controversy between them. Normally, a judgment based solely on some procedural error is not, as a general rule, considered as a judgment on the merits. A judgment on the merits is therefore one arrived at, after considering the merits of the case-the essential issues, the substantive rights presented by the action, as contra-distinguished from mere questions of practice and procedure… A judgment on the merits is thus one that takes congnizance of the true bearing of the law on the rights of the parties where pleadings have been filed, issues are settled on those pleadings and the rights of the parties are decided on the resolution of those issues. Where this happens, the ensuing judgment is on the merits”. See, also, Oyegun vs. Nzeribe (2010) 7 NWLR (Pt. 1194) 577; Ogundoyin vs. Adeyemi (supra). A case not heard on the merits smacks of denial of fair hearing, see Gambo vs. Ikechukwu (2011) 17 NWLR (Pt. 1277) 561.”
The lower court’s failure to serve hearing notice on the appellants and offer or provide them with even opportunity to cross-examine the respondent’s witness, to my mind, is a serious affront to their fundamental and inalienable right to fair hearing as guaranteed under the sacrosanct provision of section 36(1) of the 1999 Constitution, as amended. That failure, a costly one at that, seriously, impinges on the jurisdiction of court to entertain the matter. Having arrived at the above finding, breach of the appellants’ inviolable constitutional right to fair hearing, the implication is that the entire proceedings before the lower court is entrapped by the intractable web of nullity. Where a court finds, as in the case in hand, that a party’s right to fair hearing is breached, the only option left to it is to allow the appeal to it, see, Kim vs. State (1982) 4 NMLR (Pt. 233) 17; FBN Plc vs. T.S.A. Ind. Ltd. (2010) 15 NWLR Pt. 1216) 247; Tanko vs. UBA Plc (2010) 17 NWLR (Pt. 1221) 80; FRN vs. Akubueze (2010) 17 NWLR (Pt. 1223) 525; Dingyadi vs. INEC (No.1) (2010) 18 NWLR (Pt. 1224) 1; Leaders & Co. Ltd. vs. Bamaiyi (2010) 18 NWLR (Pt. 1225) 329; Adeogun vs. Fasogbon (2011) 8 NWLR (Pt.1250) 427; Ovunwo vs. Woko (supra); ACB Plc vs. Losada (Nig.) Ltd. (supra); Mil Gov. Lagos State vs. Adeyinya (2012) 5 NWLR (Pt.1293) 291.
In the light of the foregoing, I disagree in toto with the contention of the respondent that the lower court was functus officio after the delivery of its judgment on 26/03/2004. The argument, as elegant as it is, flies in the face of the law. The circumstances of this case make the cases of Ogolo vs. Ogoto (supra) and O.C.O. of MV ‘G & C Admiral’ vs. Adeniran (supra), on which the respondent’s counsel pegged his submission, inapplicable hereto. In the result, I resolve the singular issue in this appeal in favour of the appellants.
The dire consequence of a matter marooned in a nullity, such as the instant case, is not a moot point. It is as if nothing happened, id est, as if the judgment or order was never given. It can be set aside without much ado, see Okoye vs. Nigeria Const. & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501; Bello vs. INEC (2010) 8 NWLR (Pt. 1196) 342. By the same token, a null and void proceeding or judgment does not donate any enforceable right to its beneficiary nor does it impose any obligation on the losing party. The party holding a null judgment has only scored a barren or pyrrlic victory, see Ajiboye vs. Ishola (2006) 13 NWLR (Pt. 998) 628; Oyeneyin vs. Akinkugbe (2010) 4 NWLR (Pt. 1184) 265.
On the whole, given the reasons advanced heretofore, I hold that the appellants’ appeal is meritorious. Consequently, the appeal succeeds and is allowed. In the circumstance, I set aside the proceedings only, in the lower court, in suit No. KWS/96/2001 for want of recognition of adherence to the appellants’ constitutional right to fair hearing. Accordingly, the appellants’ action in suit No. KWS/96/2001 be and is hereby remitted to the Hon. Chief Judge of Kwara State for reassignment to another Judge, other than J.F. Gbadeyan, J., and for same to be heard de novo. The parties shall bear their respective costs of prosecuting and defending the appeal.

IGNATIUS IGWE AGUBE, J.C.A.: I have carefully read in advance the erudite Judgment just delivered by my Lord and learned brother O.F. Ogbuinya, JCA. He has demonstrated his usual acuity and analytical prowess in the determination of the issue that has fallen for determination in this appeal. As rightly posited at page 19 of the Judgment, the hub of the sole issue in this appeal is whether the right of fair hearing of the Appellant was breached during the proceedings in the lower Court so as to warrant the setting aside of the said judgment?
My Lord has also in my humble view, rightly highlighted the hallmarks or attributes of fair hearing and the confluence between the concept and jurisdiction of a Court to hear and determine a matter. In the recent case of S & D Construction Company Ltd. v. Chief Bayo Ayoku & Anor (2011) ALL FWLR (Pt. 604) 1 at 22 paras. C-G; per Adekeye JSC; had succinctly reemphasized the Constitutionality of the right to fair hearing as enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 and also stressed on the essence of this right to the attainment of justice and enumerated the basic attributes of fair hearing to include:
1. The hearing of both sides on all material issues in contention, before reaching a decision which may be prejudicial to any of the parties in the case.
2. That the Court shall give equal treatment, opportunity and consideration to all concerned in the case.
3. That the proceedings be conducted in the full glare of the public and all concerned be informed of and should be accorded access to such venue of hearing; and
4. That having regard to all the circumstances in every material decision in the case, justice must be not only done but must manifestly be seen to be done.
It is also trite from the authority above cited and other authorities (a few which are here under mentioned), that the burden is on the party alleging breach of fair hearing (as in this case) to prove the breach and he must do so in the light of the facts of the case. See Maiko v. Itodo (2007) 7 NWLR (Pt. 1034) 443; Usani v. Duke (2004) 7 NWLR (Pt.871) 116 (2005) ALL FWLR (Pt. 244) 960; Fagbule v. Rodrigues (2002) 7 NWLR (Pt. 762) 188; Adeniran v. NEPA (2002) 14 NWLR (Pt. 786) 30; Bamigboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290 and Awoniyi v. Registered Trustees the Rosicrucian Order (AMORC) (2000) FWLR (Pt.25) 1592.
See also per Alfa Belgore JSC (as he then was) who described the concept of fair hearing in Magit v. University of Agric Markudi (2006) 133 LRCN 46 at 51; as “not being a cut and dry principle which parties can in the abstract always apply to their comfort and conveniences. It is a principle which is based on facts of the case before the Court. Only the facts of the case can influence and determine the application or inapplicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case”.
I shall lend my voice to the profound pronouncements of my learned brother by stating that it is the duty of the court to create the necessary conducive atmosphere for fair hearing although the court is not duty bound to compel the party to take advantage of the atmosphere so created. Thus, as was succinctly posited by Fabiyi, JSC, in his lead Judgment in S & D Construction Co. Ltd v. Ayoku (supra) at page 16 paragraph. E relying on the cases of Omo v. Judicial Service Commission Delta State (2000) FWLR (Pt. 20) 676; (2000) 12 NWLR (Pt. 682) 444 and Okoye v. Nigeria Construction Furniture Co. Ltd (1999) 6 NWLR (Pt. 1999) 501 at 541; and re-echoing the dictum of Tobi, JSC; in Newswatch Communications Ltd v. Atta (2006) 11 ALL NLR (Pt.1) 211 at 225; Oguntayo v. Adelaya (2009) 15 NWLR (Pt.1163) 150 at 186 paras E-G: “A party who had the opportunity of being heard but failed to utilize same, …. cannot complain of breach of fair hearing. “See also Akinduro v. Alaya (2007) ALL FWLR (Pt.281) 1653 and Umaru v. Tunga (2010) ALL FWLR (Pt. 607) 726 at 740; Adigun v. A.G. Oyo State (1987) 1 NWLR (Pt.59) 678 and Bill Construction Co. Ltd v. Imam & Sons Ltd. (2006) 19 NWLR (Pt. 1013) 1 and Union Bank of Nigeria Plc. v. Aspra Builders (W.A) Ltd. (2010) ALL FWLR (Pt.518) 865).
In the case of Pam v. Mohammed (2008) 16 NWLR (Pt. 1112) 1 at 94 para. C; where the trial Judge adopted a procedure akin to the one adopted by the trial Judge in the case under appeal; Tobi, JSC; again emphasizing the need and indeed the duty of a Judge not to create hostile and oppressive environment for litigation held as follows:
“I have never come across a more oppressive and hostile litigation than this in my life as a Judge. Here is a case where the trial Judge refused to stand down a matter for ninety minutes. Here is a case where very hostile proceedings (using the expression of Ademola, CJN in Doherty v. Doherty (1967) NMLR 241) in which the facts were violently and notoriously in dispute, were not converted to a Writ of Summons, all in the name of speedy hearing. Here is a case where a matter fixed for a motion was rushed to give Judgment in favour of the 1st Respondent the same day, again in the name of speedy hearing. It is a matter where all known principles of fair hearing were thrown overboard to destroy the case of the Appellants again in the name of speedy hearing. The ambition and desire of a Judge to hear a matter speedily cannot be substituted for fair hearing of the case.”

In the instant case where the Appellants had earlier brought an application to recall PW5 but the Ruling was not delivered until 19/03/2003 in their absence after which the learned trial Judge did not go further to notifiy the absent Appellants of the next hearing dates when he proceeded to take the Respondent’s witnesses and his learned Counsel’s sole Written Address on the 26th of March, 2004, on which date he also delivered Judgment, still in the absence or default of the Appellants’ appearance; this was patently a breach of the four hallmarks or attributes of the right to fair hearing of Appellants as guaranteed by Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 and highlighted by Adekeye, JSC; in the case earlier cited.
This is more so, where as can be gleaned from the Records, the learned trial Judge proceeded on national assignment for nine full months’ from the 19th of March, 2003, after delivering the Ruling on the application for the recall of PW5 and upon resumption subsequently, did apprise the Appellants of any of the hearing dates by way of Hearing Notices before delivering the Judgment dismissing their case. As was rightly held by my Lord in the lead Judgment, the service of the hearing notice was a sine qua non to the continuation of the hearing and as was held elsewhere, where as in this case, the Appellants complain that they were neither served nor apprised of the proceedings in the lower Court before Judgment was delivered against them, the said proceedings of the lower Court ought to be declared a nullity for violating one of the twin pillars of the rule of fair hearing which is audi alteram partem. See Odutola v. Kayode (1994) 2 NWLR (Pt 324), Obinunure v Erinosho (1966) 1 ALL NLR 250; Scott Emuakpor v. Ukavbe (1975) 12 S.C 41 Odita v. Okwudinma (1969) 1 ALL NLR 228 and the celebrated case of Sken Consult (Nig) Ltd. v. Sekonday Ukey (1981) 1 SC 6 all cited in the Okoye v. CPMB Ltd. case (supra).’
In Mohammed v. Husseni (1998) 12 SCNJ 153-154; Wali, JSC; delivering the lead Judgment of the apex Court, enunciated the object of service as being to give notice to the other party on whom service is to be effected so that he might be aware of and able to resist, if he may, the action brought against him. In other words, it is to obviate the element of surprise and to give the adverse party (in this case, the Appellants) the opportunity of cross examining the witnesses called by the Respondent in their (Appellants) absentia. See United Nigeria Press Ltd v. Adebanjo (Nig). 6 NSCC 395.
In Eke v. Ogbonda (2006) 18 NWLR (Pt.1012) 506 at 537; Oguntade, JSC, relying on the cases of Obimonure v Erinosho & Anor (1966) All N.L.R.24 at 247-248; Adeigbe & Anor v Kusimo & Anor (1965) N.M.L.R. 284; Craig v Kanssen (1943) K.B. 256, Skenconsult (Nig.) Ltd. & Anor. v. Ukey (supra), Madukolu & Ors. v. Nkemdilim (1962) 1 All N.L.R. 587 at 594; Hession v. Jones (1914) 2 KB. 421 and Timitimi v. Amabebe (1953) 14 WACA 374 at 377; per Coussey J.A; took the view in this respect, that:
“It is a correct proposition of law that where service of process is required, failure to serve such process is a fundamental vice and the person affected by the order but not served with the process is entitled ex debito justitiae to have the order set aside as a nullity.
Similarly, where the court as constituted lacks the competence to hear a particular case, its decision thereon is considered a nullity and the same court which made the decision may set it aside,”
Speaking in. the same vein, his Lordship Onnoghen, JSC; in A.P.C. LTD. v. NDIC (Nig.) Universal Bank Ltd. (2006) ALL FWLR (Pt. 335) 1 at 51; although in respect of writ of summons, had posited on the vexed issue of failure to serve an adverse party with the process of Court before Judgment; inter alia that:
“A Court has no jurisdiction to give Judgment against a person who has not been served with a Writ of Summons. A person who has not been served with a Writ of Summons in a case in which Judgment was later given against him could not be said to have had a fair hearing”‘
There is no doubt that the above dicta of the erudite Law Lords are in tandem with the correct and current position of the law which we of this Division in Wing Commander A. Adamu v. Donatus F. Akakalia (2008) ALL FWLR (Pt. 428) 352 at 410 adopted in holding as we did that:-
“The right to be heard is one of the fundamental rights provided and enshrined in our Constitution. The right is as old as mankind. In other words, the rule of natural justice has been with us from creation. Even God Himself did not pass sentence upon Adam before he was called to enter his defence”.
Since from the Records, it is clear that the Judgment of the lower Court was in default of the appearance of the Appellant, the pertinent question which calls for an answer herein, is whether the learned trial Judge was right to have dismissed the application by the Appellants, for the Court to set aside the default Judgment. To answer this question, it is only proper to call in aid the dictum of Wali, JSC in Mohammed v. Hussein (supra) at pages 153 lines 35 – 40 to 154 lines 1 – 14; where he intoned:
“The principle is that unless and until a Court has pronounced a Judgment on merit or by consent it retains the power to set aside its own default Judgment. The power to do so is discretionary which has to be exercised judiciously, guided by the following principles pronounced by the Court in Williams & Ors. v. Hope-Rising & Voluntary Funds Society (1982) 1 – 2 SC 145;
“1. The reasons for the applicant’s failure to appear at the hearing or trial of the case in which judgment was given in his absence;
2. Whether there has been undue delay in making the application to set aside the Judgment so as to prejudice the party in whose favour the Judgment subsists:
3. Whether the party in whose favour the judgment subsists would be prejudiced or embarrassed upon an order for rehearing of the suit being made, so as to render such a course inequitable;
4. Whether the applicant’s case is manifestly unsupportable; and
5. Whether the Applicant’s conduct throughout the proceedings, that is, from service of the Writ upon him to the date of Judgment, has been such as to make his application worthy of sympathetic consideration.
See also Idam Ugwu & Ors. v. Nwaji Aha & Ors. (1961) ALL NLR 438; Adebayo Doherty v. Ade Doherty (1964) NNLR 144 at 145; Khawan v. Elias (1960) 5 FSC 224 and Evans v. Barlain (1937) 2 ALL E.R. 646 at 650.
Going by the parameters set out in the above cited cases and since it is glaring from the facts as gleaned from the Records that the learned trial Judge’s sittings which culminated in the eventual default Judgment, were more or less epileptic to the extent that for nine good months he was on national assignment and upon resumption no hearing notice(s) was/were served on the Appellants on the diverse dates he continued with the hearing; the Judgment could not have been said to be on the merits or with consent and the justice of the case dictated that the learned trial judge ought to have set aside the default Judgment to allow the Appellants to recall their witness and/or cross examine the witnesses for the Respondent.
I agree therefore that the failure of the Court below to accord the Appellants the opportunity to cross examine the Respondent’s witnesses was a violation of their fundamental and inalienable right to fair hearing as guaranteed them under Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 and accordingly, the Judgment delivered in the circumstance was without the requisite jurisdiction and therefore a complete nullity. Therefore, in line with the authorities of Kim v. State (1992) 4 NWLR (Pt.233) 17; FBN v Plc v. TSA Ind. Ltd. (2010) 15 NWLR (Pt.1216) 247; Tanko v. UBA Plc (2010) 17 NWLR (Pt. 1221) 80; FRN v. Akubueze (2010) 17 NWLR (Pt. 1223) 525; Dingyadi v. INEC (No.1) (2010) 18 NWLR (Pt. 1224) 1; Leaders & Co. Ltd. v. Bamaiyi (2010) 18 NWLR (Pt. 1225) 329; Adeogun v. Fasogbon (2011) 8 NWLR (Pt. 1250) 427; Ovunwo v. Woko (supra); ACB Plc. v. Losada (Nig.) Ltd. (supra); ably cited by my learned brother in the lead Judgment, I too shall allow this appeal for being meritorious. I also set aside the proceedings in Suit No. KWS/96/2001 for being in breach of the Appellants’ constitutional right to fair hearing and hereby remit the case to the Honourable, the Chief Judge of Kwara State; for re-assignment before another Judge. I make no order as to costs.

ITA G. MBAMA, J.C.A.: I have had the advantage of reading the draft of the lead judgment, just delivered by my learned brother, O. F. Ogbuinya JCA. I agree, completely, with him and adopt his reasoning and conclusions as mine in this appeal, and hold that it is meritorious.
Accordingly, the appeal is allowed and I abide by the consequential Orders in the lead judgment.

Appearances

Abdulhamid Rabiu, Esq.
O.A. Ayinde, Esq.For Appellant

AND

Akin Akintoye II,
S. Olorunkonba, Esq.,
J. Adebayo Esq.
Mrs. O. Igbayiloye and
A.G. Ademola-Bank Esq.For Respondent