SHELL PETROLEUM DEVELOPMENT COMPANY LIMITED v. ETEIDUNG EMMANUEL ALFRED AKPAN & ORS (2014)

SHELL PETROLEUM DEVELOPMENT COMPANY LIMITED v. ETEIDUNG EMMANUEL ALFRED AKPAN & ORS

(2014)LCN/7408(CA)

In The Court of Appeal of Nigeria

On Friday, the 4th day of July, 2014

CA/C/138/2013

RATIO

PRACTICE AND PROCEDURE: A TRIAL DE NOVO; THE IMPLICATION OF WHEN A CASE COMMENCES DE NOVO
We, entirely, agree with the appellant’s counsel that when a case commences de novo the findings at the first trial are deemed to have been discarded or got rid of, per Idigbe JSC in Fadiora and Ors v Gbadebo and Anor (1978) LPELR – 1224 (SC) 20 A-C. This is so for a trial de novo or a venire de novo is a retrial anew as if no trial whatever had been had in the first instance, per Oputa JSC in Kajubo v State (1998) LPELR -1646 (SC) 25 F-G [italics supplied]. In effect, a trial de novo means a new trial, per Olatuwura JSC in Erekanure v State [1993] NWLR (Pt.294) 285, 394; Umaru v. State (2009) LPELR – 3360 9 SC) 11 – 14 D-E. per. CHIMA CENTUS NWEZE, J.C.A.

COURT: COURT’S DECISION; WHETHER A COURT’S DECISION MUST DEMONSTRATE IN FULL A DISPASSIONATE CONSIDERATION OF ALL THE ISSUES PROPERLY RAISED AND HEARD AND MUST REFLECT ON THE RESULT OF SUCH EXERCISE

We find considerable force in the appellant’s submission on the effect of the court’s failure to consider the above issue. True, indeed, a court’s decision must demonstrate in full a dispassionate consideration of all the issues properly raised and heard and must reflect on the result of such exercise. In other words, it must show a clear resolution of all the issues that arise for decision in the case and end up with an ultimate verdict which flows logically from the facts as pleaded and found proved, Ogunyade v Oshunkeye and Anor (2007) LPELR – 2355 (SC) 9, C – E; Ojogbue and Anor v Nnubia and Ors (1972) 1 All NLR (Pt. 2) 226; Adah v NYSC [2004] All FWLR (Pt.223) 1850; 7up Bottling Co Ltd v Abiola and Sons Ltd [2001] 13 NWLR (Pt 730) 469; Alao v Akano [2005] All FWLR (Pt.264) 799, 807. per. CHIMA CENTUS NWEZE, J.C.A.

CONSTITUTIONAL LAW: FUNDAMENTAL RIGHT TO FAIR HEARING; WHETHER WHERE A COURT FAILS TO GIVE FULL CONSIDERATION AND DETERMINATION OF THE CASE OF A PARTY, IT IS A SITUATION TOUCHING ON THE VIOLATION OF THE PARTY’S RIGHT TO FAIR HEARING

Again, as had hinted above, the appellant’s counsel contended that the lower court’s approach amounted to a breach of the appellant’s fair hearing. We, entirely, agree with that submission. All courts must never leave any issue or issues raised by the party or parties to suit without hearing and determining same before concluding the case, Katto v C.B.N. [1991] 9 NWLR (Pt. 214) 126; Osasona v Ajayi and Ors [2004] 14 NWLR (Pt. 894) 527.

In other words, a court is bound to consider every material aspect of a party’s case validly put forward, Federal Ministry of Health v Comet Shipping Agencies Ltd [2009] 9 NWLR (Pt.1145) 193; Adeogun v Fasogbon [2011] 8 NWLR (Pt. 1250) 427; Ovunwo v Woko [2011] 17 NWLR (Pt. 1277) 522; Odetayo v Bamidele (2007) LPELR – 2211 (SC) 12, B – D.

The cases are many indeed, Kotoye v CBN [2000] 16 WRN 71; [1989] 1 NWLR (Pt 98) 419; Tunbi v Oawole (2000) LPELR -3274 (SC); Anyaduba v NRTC Ltd [1995] 5 NWLR (Pt 243) 535, 561; Okonji v Njokanma [1991] 7 NWLR (Pt 202) 131; MMS Ltd and Anor v Oteju and Anor [2005] 5 SCNJ 100; Araka v Ejeagwu [2000] 12 SCNJ 206; Bamaiyi v State and Ors [2001] 8 NWLR (Pt 715) 270, 285; Ogunyade v Oshunkeye and Anor (2007) LPELR -2355 (SC) 9, C-E.

As Mohammed JSC held in Uzuda and Ors v Ebigah and Ors (2009) LPELR -3458 (SC) 23- 24, G-B, where a Court fails to give full consideration and determination of the case of a party, it is a situation touching on the violation of the party’s right to fair hearing. It is trite that where there is a breach of a party’s constitutional right to fair hearing, then the proceedings are vitiated thereby requiring the intervention of an appellate Court on a complaint of the affected party, Amadi v Thomas Aphin & Co Ltd (1972) 1 All NLR (Pt. 1) 409; Adigun v Attorney-General, Oyo State [1987] 1 N.W.L.R. (Pt. 53) 678 and Nwokoro v Osuma (1990) 3 N.W.L.R. (Pt. 136) 22 at 32 – 33.

His Lordship, Mohammed JSC, citing Oguntade JSC, continued:

The right to a fair hearing in a suit is not only a common law requirement in Nigeria but also a statutory and constitutional requirement. This principle is fundamental to all court procedure and proceedings. Thus, when a party submits an issue to a court for determination, that court must consider and make pronouncement on it, unless if such amounts to hypothetical or academic issue. Where such issues amount to mere hypothetical and academic issue, the court would not have jurisdiction to hear it. In the case of Opuiyo v Omoni Warri (2007) 6 SCNJ 131 recently decided by this court it was held thus:
As a matter of law, a court has the duty to consider the issues submitted to it for adjudication. where a court failed to consider and adjudicate on such issues, it is usually an error of law because the omission constitutes a denial to the party complaining of his right of fair hearing as enshrined in the constitution, per Oguntade JSC at 138.
What, therefore, crystallizes from binding authorities is that every court, in its judgment or order, must demonstrate in full a dispassionate consideration of the issues properly raised and heard and must reflect the result of such an exercise. Where it fails to do so and a miscarriage of justice has resulted or is occasioned such a judgment or order should on appeal as in the instant case not be allowed to stand and must be reversed, Ojogbue v Nnubia (1972) 1 All NLR (Pt. 2) 226; Okonji v Njokanma [1991] 7 NWLR (Pt. 202) 131; Chukwu v NITEL [1996] 2 NWLR (Pt.430) 290, 301.

Now, a breach of the right to fair hearing goes to the root of the trial Court’s jurisdiction. If established, it nullifies the entire proceeding in which the breach occurred leaving nothing for the appellate Court’s further scrutiny, Deduwa v Okorodudu [1976] 9-10 SC 310; Adigun v Attorney General Oyo State [1987] 1 NWLR 1 (Pt.53) 578. Thus, there is authority for the view that the failure of the court to consider such an issue amounts to a breach of fair hearing hence occasioning a miscarriage of justice, Brawal Shipping (Nigeria) Limited v F. I. Onwadike Company Limited [2000] 11 NWLR (Pt.678) 387; Bayol v Ahemba [1999] 10 NWLR (Pt.623) 381, 392 – 393; Mogaji Atanda v Salami Ajani [1989] 3 NWLR (Pt.111) 511, 539; Katto v CBN [1991] 9 NWLR (Pt.214) 126, 149. per. CHIMA CENTUS NWEZE, J.C.A.

CONSTITUTIONAL LAW: FUNDAMENTAL RIGHT TO FAIR HEARING; WHETHER A BREACH OF FAIR HEARING OCCASIONED A MISCARRIAGE OF JUSTICE

JUSTICES

DATHATU ADAMU Justice of The Court of Appeal of Nigeria

CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

SHELL PETROLEUM DEVELOPMENT COMPANY LIMITED Appellant(s)

AND

1. ETEIDUNG EMMANUEL ALFRED AKPAN
2. JOSEPH CLEMENT
3. CHIEF LAWRENCE BRUNO UMOREN (For and on behalf of Ikot Ada Udo Village, Ikot Abasi LGA suing by their Attorney)
4. PRINCE UFOT AKPAN PHENSON
5. MR. EMMANUEL EDET BASSEY
5. PRINCE ANAJIYA UJILE Respondent(s)

CHIMA CENTUS NWEZE, J.C.A. (Delivering the Leading Judgment): The respondents in this appeal [as plaintiffs] took out a Writ of Summons against the appellant herein [as defendant] at the Federal High Court, Uyo Judicial Division, Uyo, Akwa Ibom State (hereinafter, simply, referred to as “the lower court’). In the said Writ, filed along with the Statement of Claim, the respondents claimed, inter alia, damages and injunctive reliefs for an alleged oil spill which emanated from the appellant’s oil well at Ikot Ada Udo village, Ikot Abasi Local Government Area of Akwa Ibom State.

Upon service on them, the appellant’s former counsel greeted the respondents’ processes with a preliminary objection. The two grounds of the objection were that (a) the Writ of Summons was, incurably, defective due to its non-compliance with sections 97 and 99 of the Sheriffs and Civil Process Act [which prescribe the endorsement for service outside jurisdiction] and (b) that the subject matter was statute-barred.

In its ruling of January 30, 2007, the lower court (Coram Olotu J) dismissed the said preliminary objection. Ultimately, Abubakar J inherited the matter. His Lordship commenced hearing de novo. The appellant’s new counsel filed another notice of preliminary objection challenging the court’s jurisdiction. This latter objection was anchored on three grounds. Like ground one of the earlier preliminary objection, the first ground of this latter objection was woven around the complaint that the Writ of Summons was defective as it was not endorsed for service outside jurisdiction, section 97 of the Sheriffs and Civil Process Act; Owners of MV Arabella v NAIC [2008] 11 NWLR (Pt.1097) 182.

As a preliminary issue, the appellant’s counsel canvassed the applicability of the de novo principle. It entreated the lower court [Coram Abubakar J) to entertain the objection on that basis [the de novo principle]. In its ruling of March 18, 2013, the lower court [coram Abubakar J] dismissed the said latter objection. This appeal was prompted by the appellant’s grievance against that ruling which, in the appellant’s view, did not consider the applicability of the said de novo principle.

ISSUE FOR DETERMINATION

Only one issue was set out for the determination of the appeal. It was framed thus:

Whether the refusal of the trial Judge to consider the legal principle of de novo trial, particularly, as it relates to ground one in the [latter objection] in his Ruling delivered on March 18, 2013, did not, grievously, affect the fairness of the hearing and thereby occasioned a miscarriage of justice to the appellant?

On their part, the respondents formulated the following lone issue for determination:

Whether in view of the ruling of 30th January, 2007 the trial court was not right when it held as it did on the objection bordering on Section 97 of the Sheriff and Civil Process Act, Cap. S.6 laws of the federation of Nigeria, 2004?

ARGUMENT ON THE ISSUE

APPELLANT’S ARGUMENT

At the hearing of the appeal on May 7, 2014, Henry Chibor, counsel for the appellant, adopted the appellant’s brief filed on February 10, 2014 and the Reply brief deemed, properly, filed and served on May 7, 2014. In the main brief, he contended that the lower court erred in law when it failed to consider the applicability of the de novo principle of law in relation to ground one of the appellant’s latter preliminary objection of 2012. Put differently, that the said court erred when it failed to make any pronouncement on the question whether the said principle applied in the circumstance of the said latter objection of 2012.

The view was canvassed that, having regard to the fact that the appellant had canvassed views, and cited decided authorities, in support of the applicability of the said principle, particularly as it related to ground one of the said objection of 2012, the lower court’s failure to address it had occasioned grave injustice to the appellant. This court, was, therefore, entitled to interfere with the said Ruling. The appellant’s arguments were subsumed under the subheading:

Duty of court to consider fundamental issues before it
Counsel pointed out that the law imposes a duty on courts to consider fundamental issues before them, Tanko v UBA Plc [2010] 17 NWLR (Pt.1221) 80, 93; Adeogun v Fasogbon [2011] 8 NWLR (Pt.1250) 427, 448. He explained that in the said objection of 2012, the appellant had submitted that there was no dispute that the trial was commencing de novo. As such, the said application was competent and was proper before the court, Babatunde v. P.A.S & T.A. Ltd [2007] 12 NWLR (Pt.1050) 113, 146 – 147; Ngige v Obi (2012) All FWLR (Pt.616) 592 – 604; Bakule v Tanerewa (Nig) Ltd (1995) 2 NWLR (Pt.380) 728, 738.

He explained that the implication of the above decisions was that the effect of starting a case afresh, as in the instant case, was that any of the parties in the said suit was free to bring a fresh any application brought before the previous judge in which he gave an adverse ruling against the party. According to him, the issue of non-compliance with section 97 of the Sheriffs and Civil Process Act was decided upon by Olotu J. (albeit adversely) against the objector.

He noted that, as the suit started afresh before Abubakar J, a similar application could be brought before His Lordship. It was on that ground that the appellant/objector had, again, canvassed the issue of non-compliance with the said mandatory section 97 of the Sheriffs and Civil Process Act. In his submission, applying the foregoing principle to the instant application, the previous ruling of Olotu J could not bar or hinder this court [Abubarkar] from entertaining the instant application. He prayed the court to determine the issue as it was, properly, brought before it for adjudication.

He pointed out that, from the foregoing submissions, the said 2012 objection and, in particular, as it related to issue 1 in the said preliminary objection, was argued on the applicability of the de novo principle. According to him, the issue of the applicability or otherwise of the said de novo principle was, and is still, fundamental in the circumstances of the said objection.

He pointed out that the lower court [Coram Abubarkar J], in its ruling of March 18, 2013, did not consider any of the applicant’s arguments or the above cases as they related to the de novo principle, citing page 356 of the record for the views of the lower court on ground one. He submitted that the lower court erred when it disregarded the issue of the applicability of the de novo principle which was the fulcrum of the objection of 2012.

He, further, contended that if the said court had considered and applied the said principle its reasoning would not have been predicated on the ground of its sitting on appeal on an issue, already, dealt with by the first ruling of 2006. In his submission, if the court considered the de novo principle, it would have found that non-compliance with section 97 of the Sheriffs and Civil Process Act (supra) was fatal to the originating process. He contended that such non-compliance bordered on the lower court’s competence to assume jurisdiction over the incompetent process, Owners of MV “Arabella” v NAIC (supra), 208.

He, equally, contended that the lower court’s approach amounted to a breach of the appellant’s fair hearing. He explained that the originating process would have been struck out for non-compliance with the above Act, Owners of MV “Arabella” v NAIC (supra), 207. He maintained that the lower court had a duty to make a pronouncement on that issue, Iloegbunam v Obiora (2012) 4 NWLR (Pt 1291) 405, 445. In the alternative, he urged the court to invoke section of the Court of Appeal Act and decide the applicability of the said principle in favour of the appellant, Uduma v Arunsi (2012) 7 NWLR (Pt 1298) 55, 140.

RESPONDENTS’ ARGUMENT

Counsel for the respondents, M. D. Uyoh, adopted the respondents’ brief filed on March 11, 2014. In the said brief, he submitted that once an issue had been dealt with by the same court, as in this case, the court was not bound to consider the same issue in the same proceedings, citing page 256 of the record for the lower court’s Ruling of March 18, 2013.

He canvassed the view that the lower court resolved the de novo principle. He cited pages 312 – 348 of the record for the application for extension of time to file preliminary objection; Notice of preliminary objection and written addresses etc. He maintained that the lower court considered all the grounds of the objection before overruling the said objection. He maintained that even if the de novo principle applied were to avail the appellant, the lower court would still have overruled the application on the ground that the appellant had taken steps in the matter by filing its Statement of Defence, pages 41 – 43 of the record, Saude v Abdullahi [1989] 4 NWLR (Pt 116) 387; Odua Investment v Talabi [1997] 7 SCNJ 600. He contended that Babatunde v P.A.S & T.A Ltd (supra) and Bakule v Tanerewa (Nig) Ltd (supra) were inapplicable.

In his view, the lower court was right to have held that the first issue had been dealt with in the lower court’s earlier ruling of January 30, 2007, citing Order 6 Rule 5 of the Federal High Court (Civil Procedure) Rules. Even then, he wondered whether the appellant could raise the issue of sections 97 and 99 (supra) after it had filed the Statement of Defence as shown above, Saude v Abdullahi (supra). He cited page 356 of the record for the position of the lower court. He maintained that the lower court considered the issue raised de novo.

He submitted that the appellant has not suffered any miscarriage of justice based on the ruling of the said court. In any event, it has not shown how the said ruling had occasioned miscarriage of justice on it. He cited section 135(1) and 136 of the Evidence Act [then applicable; UNILORINHMB v Ajide (2006) All FWLR (Pt 326) 282, 304 – 305; Lawal v Governor, Kwara State (2006) All FWLR (Pt 321) 1294, 1307; Ajibi v Olaewe (203) 8 NWLR (Pt 126) 253. With regard to the relief claimed in the alternative, counsel submitted that, as the appellant did not appeal against the ruling of January 30, 2007, the court cannot invoke section 15 of the Court of Appeal (as urged by the appellant).

In the reply brief, counsel submitted that, by its current attitude, the Supreme Court no longer treats non compliance with section 97 (supra) as a mere irregularity, Drexel Energy and Natural Resources (D.E.N.R) Ltd v Trans International Bank Ltd [2009] All FWLR (Pt.456) 1823; Kida v Ogunmola [2006] All FWLR (Pt.327) 402, 417. He maintained that the issue of jurisdiction could be raised for the first time at any stage, even on appeal to the apex court, Drexel Energy and Natural Resources (D.E.N.R) Ltd v Trans International Bank Ltd [2009] All FWLR (supra) 1848. He took the view that Rules of court cannot fetter the appellant’s right to raise an objection, Carnaud Metal Box (Nig) Plc. v. Agwele (2011) All FWLR (Pt.557) 750, 761.

RESOLUTION

Our perusal of the record confirmed that, Olotu J, on January 30, 2007, rendered a ruling bearing on the appellant’s ground on sections 97 and 99 (supra). At page 29 of the record, His Lordship proceeded thus:

By a Notice of Preliminary Objection…, the defendant [appellant herein] challenged the competence of this suit on two grounds, namely –

(1) The Writ of Summons which was served on the defendant in Port Harcourt, Rivers State, was not endorsed for service outside jurisdiction;
(2) The subject matter of the suit as endorsed on the Writ of Summons arose from oil spillage which occurred in 1997 and so same is statute-barred by reason of the Limitation Act Law (sic) applicable in Akwa Ibom State

After a summary of the arguments of counsel, the court resolved the first issue thus:

Order 6 Rule 5 of the Federal High Court (Civil Procedure) Rules provides thus –
For the purposes of service of a Writ of Summons or for serving any other processes relating to an action in the Court, the whole Federation is within the jurisdiction of the Court.

The implication of this Rule is that the defendant’s location in Port Harcourt, Rivers State, is within the jurisdiction of this court. Therefore, the plaintiff’s Writ issued and served on the defendant without being marked as contended by the defendant does not offend sections 97 and 99 of the Sheriff and Civil Process Act and the Rules of this Court, not even Order 3 Rules 13 and 14 of the said Rules make provision for service of Writ out of jurisdiction. Having found earlier on in this Ruling that by virtue of Order 6 Rule 5, the defendant’s location is within the jurisdiction of this court, then, these rules do not apply to the plaintiff’s Writ…The objection of the defendant on this ground is, therefore, overruled.

[page 30 of the record]

Like ground one of the earlier preliminary objection which Olotu J determined against the appellant in this appeal, the first ground of the latter objection [which Abubakar J heard] was woven around the complaint that the Writ of Summons was defective as it was not endorsed for service outside jurisdiction. At page 352 of the record, His Lordship [Abubakar J] introduced the court’s ruling thus:

This Ruling is sequel to the Preliminary Objection raised by the defendant’s counsel on the following ground:

(1) The Writ of Summons filed in this suit failed to comply with section 97 of the Sheriffs and Civil Process Act…as enunciated in Owners of MV ‘Arabella’ v Nigeria Agricultural Insurance Corporation [ ] by the Supreme Court…

At page 356 – 357 of the record, His Lordship [Abubakar J] dealt with the grounds of the preliminary objection. His Lordship proceeded thus “I have carefully perused the application made by the applicant, the Reply of the defendant and other relevant processes filed by the parties and found –

1. That ground No 1, that is, dealing with failure to comply with section 97 of the Sheriff and Civil Process Act, Cap 56 Laws of the Federation of Nigeria, 2004, has been dealt with by my predecessor Justice G. K. Olotu in her Ruling dated 30th January 2007. Suffice to state that I have no power to sit on appeal over an issue already treated by my brother…

[page 356 of the record, italics supplied for emphasis]

As indicated earlier in this judgment, counsel for the appellant contended that the lower court erred in law when it failed to consider the applicability of the de novo principle of law in relation to ground of the appellant’s latter preliminary objection of 2012. Put differently, that the said court erred when it failed to make any pronouncement on the question whether the said principle applied in the circumstance of the said latter objection of 2012.

In our view, the question that calls for determination in this interlocutory appeal is, truly, a narrow one. At page 225 of the record, [in their written address at the lower court], the appellant in this appeal, contended before the lower court as follows:

In the instant suit, the issue of non-compliance with section 97 [supra] was decided upon by Olotu J (albeit adversely) against the objector. However, as the suit is starting afresh before Abubakar J, we respectfully submit that a similar application can be brought before this Honourable Court; and it is on that premise that the Objector has again raised the issue of non-compliance with the said mandatory section 97 [supra].

Applying the foregoing principles of law in the instant application, it goes beyond doubt that the previous ruling of Olotu J cannot bar or hinder this Honourable Court from entertaining the instant application. We humbly pray this Honourable Court to proceed in its legal duty of exercising its powers judicially and judiciously and determine this application as same is competent and properly brought before it for adjudication

[page 225 of the record, italics supplied]

In other words, the appellants [as objectors] entreated the lower court to answer one simple question. It comes this: whether, in a matter commenced de novo, it was proper for an applicant to re-present an issue which had been decided in the earlier matter. That is to say, whether such a subsequent application was competent. As shown above, the lower court side-stepped this question or, rather, with profound respect, misconceived the appellant’s nuanced entreaty to it. The court took the view that it was called upon to review Olotu J’s understanding of the applicability of the section 97 (supra) to the Federal High Court. At the risk of repetition, we re-produce Abubakar J’s response to the appellant’s question. According to His Lordship:

[page 356 of the record]

Indeed, even the respondent’s counsel, with respect, betrayed his misconception of the issue which the appellant presented to the lower court for its judicial views. This is evident in the issue he framed for the determination of this appeal:

Whether in view of the ruling of 30th January, was not right 2007 the trial court when it held as it did on the objection bordering on Section 97 of the Sheriff and Civil Process Act, Cap. S.6 laws of the federation of Nigeria, 2004?

With due respect to the lower court and the learned counsel for the respondent the appellant’s invitation was to the lower court for its judicial determination of a simple question. The question was: whether, in a matter commenced de novo, it was proper for an applicant to re-present an issue which had been decided in the earlier matter. That is, whether such a subsequent application was competent. The court was under obligation to resolve that question one way or the other.

JURIDICAL STATUS OF CASES COMMENCED DE NOVO
We, entirely, agree with the appellant’s counsel that when a case commences de novo the findings at the first trial are deemed to have been discarded or got rid of, per Idigbe JSC in Fadiora and Ors v Gbadebo and Anor (1978) LPELR – 1224 (SC) 20 A-C. This is so for a trial de novo or a venire de novo is a retrial anew as if no trial whatever had been had in the first instance, per Oputa JSC in Kajubo v State (1998) LPELR -1646 (SC) 25 F-G [italics supplied]. In effect, a trial de novo means a new trial, per Olatuwura JSC in Erekanure v State [1993] NWLR (Pt.294) 285, 394; Umaru v. State (2009) LPELR – 3360 9 SC) 11 – 14 D-E.

EFFECT OF NON-CONSIDERATION OF AN ISSUE FOR DETERMINATION

NON-CONSIDERATION OF ISSUES AND FAIR HEARING

His Lordship, Mohammed JSC, citing Oguntade JSC, continued:

Counsel for the respondents had taken the view that the lower court could not sit on appeal over the decision of Olotu J. In our respectful view, this contention is erroneous having regard to the fact that the matter was coming before Abubakar J de novo. As a matter that commenced de novo, the findings at the first trial [before Olotu J] were deemed to have been discarded or got rid of, per Idigbe JSC in Fadiora and Ors v Gbadebo and Anor (supra); Kajubo v State (supra). We, therefore, endorse the appellant’s submission that the previous ruling of Olotu J could not bar or hinder Abubakar J from entertaining the application on the de novo principle.

One final point: Counsel for the respondent, on the authority of Saude v Abdullahi (supra) and Odua Investment v Talabi (supra), had contended that the appellant had taken steps in the matter by filing its Statement of Defence, pages 41 – 43 of the record, and so, the lower court was still bound to overrule the appellant. With respect, this view is speculative. Whether the lower court was going to overrule the appellant’s submission was immaterial. The only crucial question would be: did that court consider the issue of the competence of the second application anchored on section 97 (supra) based on the de novo principle?

From what we have said thus far, it did not. That was an erroneous approach for it was under obligation to render a decision on that question one way or the other, Kotoye v CBN (supra); Tunbi v Oawore (supra); Anyaduba v NRTC Ltd (supra); Okonji v Njokanma (supra); MMS Ltd and Anor v Oteju and Anor (supra); Araka v Ejeagwu (supra); Bamaiyi v State and Ors (supra); Ogunyade v Oshunkeye and Anor (supra).

Its failure to consider that issue amounted to a breach of fair hearing: a breach that occasioned a miscarriage of justice, Brawal Shipping (Nigeria) Limited v F. L Onwadike Company Limited [2000] 11 NWLR (Pt.678) 387; Bayol v Ahemba [1999] 10 NWLR (Pt.623) 381, 392 – 393; Mogaji Atanda v Salami Ajani [1989] 3 NWLR (Pt.111) 511, 539; Katto v CBN [1991] 9 NWLR (Pt.214) 126, 149. In all, therefore, we find considerable merit in this appeal. We enter an order allowing it. Appeal allowed. The ruling of Abubakar J, delivered on March 18, 2013 is hereby set aside. This case is hereby remitted to the lower court for re-assignment to another Judge of that court. Parties are to bear their respective costs.

DALHATU ADAMU, J.C.A.: I was privileged to have read the lead judgment of my learned brother, C. C. Nweze, JCA, in this appeal. He had considered the only lone issue raised in the appeal and determined it properly and resolved it appropriately. I can only add as his lordship Mohammed, JSC, did in Ozuda & Ors. v. Ebigah & Ors. (2009) LPELR 3458 (SC) 23 – 24 that where a court fails to give full consideration and determination of the case of a party, it is a situation touching on the violation of a parties right of fair hearing. The breach of a right of fair hearing goes to the root of the trial court’s jurisdiction. It nullifies the entire proceedings in which the breach occurred leaving nothing for the appellate court to decide. Dadauwa v. Okorodudu (1976) 9-10 SC 310; Adigun v. Attorney-General, Oyo State (1987) 1 NWLR (Pt.53) 578.

Failure of the trial court to consider the issue amounted to a breach of fair hearing- Magaji v Ajani (1989) 3 NWLR (Pt. 111) 511. I therefore endorse the decision in the lead judgment and find considerable merit in this appeal which I hereby also allow.

The Ruling of Abubakar J, delivered on 18/3/2013 is hereby also set aside by me. I abide by the consequential order including an order on costs as made in the lead judgment.

ONYEKACHI AJA OTISI, J.C.A.: I had the privilege of reading, in draft, the Judgment just delivered by my learned Brother, Chima Centus Nweze, JCA, allowing this appeal. All issues raised therein for determination have been eloquently resolved. I am in agreement with his reasoning and conclusion, which I adopt as mine.

I also allow this appeal and abide by the Orders made in the lead Judgment.

Appearances

Henry ChiborFor Appellant

AND

M. D. UyorFor Respondent