MAINSTREET BANK LIMITED v. ALHAJI BELLO ISA BAYERO (2016)

MAINSTREET BANK LIMITED v. ALHAJI BELLO ISA BAYERO

(2016)LCN/8542(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of April, 2016

CA/K/367/2007

RATIO

COURT: COMPETENCE OF COURT; WHEN IS A COURT COMPETENT
The law is trite, a Court of law is competent to taking cognizance of a matter presented to it, for the purpose of determining such matter if:
(a). It is properly constituted as regards qualification of members of the bench and no member is disqualified for one reason or another;
(b). The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(c). The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. PER IBRAHIM SHATA BDLIYA, J.C.A.
FAIR HEARING: ESSENCE OF FAIR HEARING AND EFFECT OF BREACH OF FAIR HEARING
For the purpose of securing justice, the right to fair hearing is quite germane. The concept of fair hearing is hinged on the twin principles of natural justice, namely:
(a) Audi alteram paftem, which means/connotes that parties to a dispute must both be heard by the arbiter.
(b) Nemo judex in causa sua, which requires that a man cannot be a judge in his own cause but must be free from bias or even livelihood of bias.
Both principle guarantees that a party to a dispute must be given a fair hearing. The right to fair hearing is a constitutional right enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria , 1999. See Vena v. Access Bank Plc (2015) All FWLR (Pt. 772) P. 1765 @ 1788.
Fair hearing in essence, means giving equal opportunity to the parties to be heard in the litigation before the Court. Fair hearing means a trial conducted according to all legal rules made to ensure that justice is done to the parties. Fair hearing in relation to a case means the trial of a case or the conduct of the proceedings therein in accordance with the relevant laws, rules of Court and principles of natural justice. See Pam vs. Mohammed (2008) 16 NWLR (Pt. 1112) Pl @ 68. See also INEC vs. Musa (2003) 3 NWLR (Pt. 806) P.7; UNB Ltd. Vs. Nwaokolo (1995) 6 NWLR (Pt. 12) and Ekpeto vs. Wamagho (2004) 13 NWLR (Pt. 905) P. 394.
In civil cases fair hearing entails the following which must be strictly complied with in the adjudication process by the Court.
(a) A plaintiff or any party is entitled to counsel of his choice;
(b) A plaintiff must be afforded the opportunity to call all necessary witnesses in support of his case;
(c) A plaintiff by himself or counsel must have the opportunity to cross-examine or otherwise challenge the evidence of witnesses called by his adversary;
(d) At the close of the case and in accordance with the relevant Court rules, a plaintiff must have the same right as given to his adversary to offer by his counsel the final address on the law in support of his case.
Fair hearing is a constitutional provision under Section 36(1) 1999 Constitution (Altered), which is that:
“36 (1) in the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
The Courts have had in a plethora of decided cases enunciated the importance of the provisions of Section 36(1) of the Constitution, and the necessity of its observance in the litigation processes by the Courts. In WAPAH V. MOURAH (2006) 18 NWLR (Pt. 1010) P. 1 @ 48-49, this Court re-emphasized that fair hearing as encompassed in the 1979 and 1999 Constitution whose provisions are impari materia with the 1999 constitute (altered) is not an imaginary proposition. It is a state of affairs that consists of many ingredients. Fair hearing under the Constitutions is an entrenched fundamental right. It encompasses not only compliance with the rules of natural justice- audi alteram and nemo iudex in causa sua- but also entails compliance with the provisions of Sections 33 and 36 of the Constitution. It also entails doing, during the cause of trial, whether civil or criminal trial, all the things which will make an impartial observer leaving the Court room to believe that the trial has been balanced and fair to both sides of the trial. All that is required for a fair hearing is that a party to an action should be heard.
Section 36(1) of the Constitution (1999) as (Altered) guarantees the right to fair hearing. An essential aspect of the fair hearing is that each party to the dispute or conflict must be given the opportunity to be heard to present his own side of the dispute before a decision is taken by the Court. See BON v. ADEGOKE (2006) 10 NWLR (Pt. 988) P. 339 @ 356. The basic criteria and attributes of fair hearing include the following:
(a.) That the Court or Tribunal shall hear both sides not only in the case but also in all material issues in the case before reaching a decision which may be prejudicial to any party in the case;
(b.) That the Court or Tribunal shall give equal treatment, opportunity and consideration to all concerned;
(c.) That the Proceedings shall be heard in public and all concerned shall have access to be informed of such a place of public hearing; and
(d.) That having regard to all the circumstances in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done. PER IBRAHIM SHATA BDLIYA, J.C.A.
FAIR HEARING: MEANING AND NATURE OF FAIR HEARING
Now, the term “fair hearing” has been judicially interpreted to involve situations where, whether having regard to all the circumstances of a case, the hearing may be said to have been conducted in such a manner that an impartial observer will conclude that the Tribunal was fair to all the parties to the proceedings. It is said to mean a trial conducted according to all the legal rules formulated to ensure that justice is done to all the parties to a cause or matter – Ariori Vs Elemo (1983) 1 SCNLR 1, Kuusu Vs Udom (1990) 1 NWLR (Pt. 127) 421, Okafor Vs Attorney General, Anambra State (1991) 6 NWLR (Pt. 200) 659 at 678, Military Governor of Imo State Vs Nwauwa (1997) 2 NWLR (Pt. 490) 675, Bamgboye vs University of Ilorin (1999) 10 NWLR (Pt. 622) 290, Kalu Vs State (2011) 4 NWLR (Pt. 1238) 429. Fair hearing also postulates that parties have a right to be heard at every material stage of the proceedings – Ekuma Vs Silver Eagle Shipping Agencies PH Ltd (1987) 4 NWLR (Pt. 65) 472 at 486, Agbahomovo Vs Eduyegbe (1999) 3 NWLR (Pt. 594) 170, and Agbiti Vs Nigerian Navy (2011) 4 NWLR (Pt. 1236) 175. PER HABEEB ADEWALE OLUMIYIWA ABIRU, J.C.A.
IMPORTANCE OF ADDRESS OF COUNSEL
Without doubt, one of the legal rules formulated to ensure that justice is done to all the parties to a cause or matter in a trial is the right of a party to a case to address the Court after close of evidence. The hearing of addresses by every Court established by the Constitution of the Federal Republic of Nigeria 1999 is of Constitutional importance by virtue of Section 294 (1) of the Constitution which recognizes the right of parties to a suit to render addresses before judgment is delivered. The section reads:
“Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.
This point was made in the cases of Ndu Vs State (1990) 7 NWLR (Pt. 164) 550 at 560, Amough Vs Zaki (1998) 3 NWLR (Pt. 542) 483, Offor Vs State (1999) 12 NWLR (Pt 632) 608. The failure of a defendant to file pleadings does not take away his right to final address before a trial Court. This was explained in Faladu Vs Kwoi (2003) 9 NWLR (Pt. 826) 643 at 657 D-E by the Court of Appeal thus:
. A defendant who failed to file pleadings is still entitled to a hearing. He could, for example, decide to rely on a point of law inherent in the plaintiff?s case without the necessity of filing pleadings and adducing evidence. He may rest his case on the plaintiff?s case and simply wish to address the trial Court on issues rendered in the plaintiff?s case. All that is permitted by law.?
The statement of law was reiterated by the Court of Appeal in Onah Vs Okom (2011) LPELR-CA/C/22/20089. Address of counsel forms part of a party’s case and failure to hear the address of a party, however overwhelming the evidence on one side, taints the trial because in many cases, it is after the addresses that the Court finds that the law on the issue fought is not in favour of the evidence.
The totality of a case heard entails not only the evidence but also the addresses of counsel. Thus, the Courts have held that the denial of a party’s Counsel of the opportunity of addressing the Court, where established and proved, is not a mere irregularity but a defect in proceedings which strikes at the right of the party to fair hearing – Obodo Vs Olomu (1987) 3 NWLR (Pt 59) 111, Salami Vs Odogun (1991) 2 NWLR (Pt. 173) 291, at 301, Oyekan Vs Akinrinwa (1996) 7 NWLR (Pt. 459) 128, First Bank of Nigeria Plc Vs Ejikeme (1996) 7 NWLR (Pt. 462) 597, Duba Vs Saleh (1997) 1 NWLR (Pt. 488) 502, Eagle Construction Ltd Vs Onibugadu (1998) 1 NWLR (Pt. 533) 231, Kalu Vs State (2011) 4 NWLR (Pt. 1238) 429,Kabau Vs Rilwanu (2014) 4 NWLR (Pt. 1397) 284. PER HABEEB ADEWALE OLUMIYIWA ABIRU, J.C.A.

JUSTICES

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria

Between

MAINSTREET BANK LIMITED Appellant(s)

AND

ALHAJI BELLO ISA BAYERO Respondent(s)

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): By a writ of summons and statement of claim the respondent (as plaintiff) instituted suit No. K/201/2004 at the High Court of Justice, Kano state (the lower Court) seeking the following reliefs:
“1. A declaration that the retention or non-release of the plaintiff?s Certificate of Occupancy No. LKN 6430 (RES/RC/53/1795) by the defendant after the liquidation of the plaintiff’s indebtedness to it with respect to Current Account No. 363000767G is illegal and unlawful.
2. A directive of Court ordering the defendant to release to the plaintiff the Certificate of Occupancy No. LKN 6430 (RES/RC/531795), forthwith.
3. N500,000.00 general damages for illegal and unlawful retention of the Certificate of Occupancy No. LKN 6430 (RES/RC/531795).
4. Cost of this action”‘

The writ of summons together with the statement of claim was served on the appellant (then defendant). The appellant failed and or neglected to enter appearance nor did he file statement of defence within the prescribed period. After several adjournments by the Court, learned counsel for the respondent brought an

application for an order to enter judgment in default in his favour. On the 19th of May, 2005, the lower Court entered judgment in favour of the respondent, granting all the reliefs sought. The appellant was dissatisfied with the default judgment, hence his application for an order to set it aside, which was refused and dismissed on the 13th of December, 2005. Peeved and piqued by the dismissal of the application to set aside the default judgment, the appellant filed Notice and grounds of appeal to this Court on the 13th of December, 2015, which was amended and filed on 11th of June, 2014.

The appellant’s brief of argument was filed on the 11th of June, 2014. The respondent did not file brief of argument. The appellant’s application to hear the appeal on his brief of argument was granted on the 16th of April, 2015. The appeal was argued on the 22nd of March, 2016 whereat learned counsel to the appellant adopted the appellant’s brief of argument, urged the Court to allow the appeal, set aside the judgment of the lower Court, and to remit the case to the lower court for hearing de novo. Five issues have been distilled from the Notice and grounds of appeal

for the determination of the Court, which are thus:
“1. Whether the learned trial Judge was right not to have considered all the factors enunciated in Williams and Anor v. Hope Rise Voluntary Society (182) 1 AA NLR 7 and Mohammed v. Husseini (1998) 12 SCNJ 1 before coming to his decision.
2. Whether there was a competent writ of Summons/Statement of claim before the trial Court.
3. Whether there was proper service and endorsement of writ of summons/statement of claim on the appellant?
4. Whether the general damages of N500,000.00 and cost of N50,000.00 awarded against the appellant is not excessive in the circumstances of this case.
5.Whether the Appellant was not denied its right of fair hearing in the circumstances of this case.”

In the determination of the appeal, the issues contained in the appellant?s brief of argument would be resolved in this Order 2 and 3, 1,4, and 5.

On issues 2 and 3 Adi Esq., submitted that the writ of summons and the statement of claim initiating suit No. K/201/04 before the lower Court are incompetent in law having not been signed by a legal practitioner. That Z. M. Umar & Co. is not

a legal practitioner in law, therefore, cannot sign any Court process. The cases of Okafor v. Nweke (2007) 8 SCNJ P. 185; First Bank Plc v. Maiwada (2003) FWLR (Pt. 15) P. 2001 Olarinde v. Olarinde (1993) 7 NWLR (Pt. 307) P. 629 cited to buttress the submissions supra. It has been further contended that a Court of law has no jurisdiction to entertain a suit by an incompetence process, such as a writ of summons and or statement of claim. Counsel did urge the Court to resolve issues 2 and 3 in favour of the appellant.

By the provisions of Sections 2(1) and 24 of the Legal Practitioners Act, a Court process can only be signed by a named Legal Practitioner. Section 2(1) of the Act Provides:
“2(1) Subject to the provisions of this Act, a person shall be entitled to practice as a Barrister and Solicitor if and only if his name is on the roll.”
Section 24 of the Legal Practitioners Act, provides thus:
“24 In this Act, unless the con otherwise requires, the following expressions have the meanings hereby assigned to them respectively, that is to say-
”Legal Practitioner means a person entitled in accordance with the provisions of this Act to practice

as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or Proceedings.”
The provisions of Sections 2(1) and 24 of the Legal Practitioners Act, are not ambiguous. From both sections read together, it is clear that the signature on a Court process must be that of a named and identifiable person who has satisfied all the conditions stipulated in accordance with the provisions of the Act and so entitled to practice law particularly or generally in Nigeria under the Act. See FBN v. Maiwada (2013) 5 NWLR (Pt. 1348) P. 404 @ 494.
By virtue of Section 24 of the Legal Practitioners Act, Legal Practitioner means a person entitled, in accordance with the provisions of the Act, to practice as a barrister or as a barrister and solicitor, either generally or for the purpose of any particular office or proceedings. By this definition, a law firm is not a Legal Practitioner and therefore cannot practice as such by filing processes in the Nigerian Courts. Only legal practitioners, human beings called to the bar, can practice by signing documents.
The purpose of Sections 2(1) and 24 of the Legal Practitioners

Act, is to ensure that only a legal practitioner whose name is on the roll of the Supreme Court should sign Court processes. It is to ensure responsibility and accountability on the part of a Legal Practitioner who signs a Court process. See FBN v. Maiwada (2013) 5 NWLR (Pt. 1348) P. 444 @ 485; lbrahim v. Bande (1996) 9 NWR (Pt. 474) P. 513; United Agro Ventures v. FCMB (1998) 4 NWLR (Pt. 597) P. 546 and IBWA v. Imano (Nig.) Ltd (1988) 3 NWLR (Pt. 85) P. 33.
It is a misconception of the law to contend that a law firm registered as a business name under Section 573(1) of the Companies and Allied Matters Act is entitled to practice and sign processes in its registered name. Section 573(1) of the Act is not an authority that can be relied upon to uphold the view that a process signed and filed by a firm of legal practitioners which has no life is valid in law. The general provisions of the law in Section 573(1) of the Companies and Allied Matters Act is subject to the specific provisions of Section 2(1) and 24 of the Legal Practitioners Act. FMBN v. Ollor (2002) 9 NWLR (Pt. 773) 475; Kraus Thompson Org Ltd. v. NIPSS (2004) 17 NWLR (Pt. 901) 44.
All Court

process such as notice of appeal and originating processes must be signed in the manner prescribed by the Legal Practitioners Act that is, by a person qualified to practice as a legal practitioner and who is enrolled in the Supreme Court of Nigeria. Any Court process signed in the business name of a firm is incurably defective ab initio and is liable to be struck out. Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521.
A Court process signed in the name of a law firm without indicating the name of the particular Legal Practitioner who issued and signed the process is incompetent and is liable to be struck out.
A Court process, whether a writ of summons or statement of claim or statement of defence must be signed by a named Legal Practitioner whose identity is ascertained or ascertainable. If any process is not signed by a named Legal Practitioner such process would be incompetent, void and null. This proposition of the principles of law has the support of the supreme court in the cases of SLB Consortium Ltd. V. NNPC (2011) 9 NWLR (Pt. 1252) P.317 @ 327, where RHODES-VIVOUR’, J.S.C Held that:
?The respondent filed a preliminary objection. The

objection being that the originating process .(i.e in, the trial Court) was not property signed by learned counsel for the appellant (plaintiff)…what then is so important about the way counsel choose to sign process. Once it cannot be said who signed a process it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule of Court cannot override the law (i.e: the Legal practitioners Act). All the processes filed in Court are to be signed as follows:
First, the signature of counsel, which may be any contraption.
Secondly, the name of counsel clearly written.
Thirdly, name and address of legal firm. In this suit, the originating summons was signed but there was no name of counsel. The position is that there must be strict compliance with the Law. In this case, there is signature of counsel but no name of counsel. A signature without name is incurably bad.”
InMekiye & Anor. v. Tajudeen & 3 Ors. (2012) 15 NWLR (Pt. 1323) P. 315 @ 338, this Court held that:
?Any person signing process on behalf of a Principal partner in Chambers must state his name and designation to show that he is a Legal

Practitioner. Whose name is ascertainable in the roll of legal practitioners. In the instant case, the identity of the signatory was not disclosed on the face of the process, rather, it was sought to be explained in an affidavit of status after an objection to the process was raised.”
Further more, inAdeneye v. Yaro (2013) 3 NWLR (Pt. 1340) P. 625 @ 63, Ogunbiyi, JCA (as she then was) said:
“It is significant to emphasize the clear intention of Section 2(1) of the Legal Practitioners Act, 1990 wherein the expected signatory must be a person qualified to practice “as a Barrister and solicitor if and only if his name is on the?. The mid section should be read along with Section 24 of the same Act which defines the nature of the personality anticipated by Section 2(1). An unknown person cannot qualify under the said provision, more so where a mere signature cannot give an Information for purpose of specific identity. In other words, the stating clearly of the name of the counsel who signed the proposed notice of appeal is crucial with the document being an originating process. The scribed as it is in the case at hand, is not sufficient.?<br< p=””

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At this juncture, I think, it is pertinent to have recourse to the printed record of appeal to scrutinize the originating processes in respect of suit No. K/201/2004 which was instituted before the lower Court: a writ of summons was taken out on behalf of the respondent (who was the plaintiff) by counsel Z. M. Umar Esq. it is on pages 1 to 4 of the printed record of appeal. The relevant and material part on page 2 is reproduced hereunder:
“THIS WRIT was issued by Z. M. Umar & Co, counsel to the plaintiff whose address for service is No. 10, City Centre, Gyadi Gyadi, Zaria Road, Kano.”
The writ of summons on page 2 and the statement of claim on pages 3-4 of the printed record of appeal have been signed by “Z’ M’ Umar & Co.”. There is no name of the Legal Practitioner who signed the writ nor the statement of claim. The law is trite, a writ of summons or statement of claim or indeed any Court process to be valid must be signed by an identifiable person who is a legal practitioner and his name is on the Roll at the Supreme Court. This preposition of the principle of law has been reinforced by the Apex Court in the case of Okafor v. Nweke

(2007) 3 SCNJ P. 185, wherein Onnoghan JSC, when dealing with similar issue as in this appeal said:
“However, Section 2(1) of the Legal Practitioners Act, Cap 207 of the Laws of the Federation of Nigeria, 1990 Provides thus:-
‘Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is on the roll.’
From the above provision, it is clear that the person who is entitled to practice as a Legal Practitioner must have had his name on the roll. It does not say that his signature must be on the roll but his name. Section 24 of the Legal Practitioners Act defines a Legal Practitioner to be:
?A person entitled in accordance with the provisions of this act to practice as barrister or as a barrister and solicitor, either generally or for the purpose of any particular office or proceeding?.
The combined effect of the above provision is that for a person to be qualified to practice as a Legal Practitioner he must have his name on the roll otherwise he cannot engage in any form of legal practice in Nigeria.

The question that follows is whether J.H.A Okolo, S.A.N & Co, is a legal practitioner recognized by law.?
When faced with similar issue in First Bank Plc v. Maiwada (2003) FWLR (Pt. 151) P. 2001 – 2015, Mangaji JCA (of blessed memory) had this to say:
“David M. Mando & Co is a firm of Legal Practitioners although as David M. Mando, Esq. himself conceded, in that firm which he formed it is only himself that purses legal practice as he has no partner contrary to the impression that business name Conveys. Without doubt, David M. Mando is a legal practitioner and the respondent recognizes that fact. But the signature on the notice of appeal is that of David M. Mando & Co. and not that of David M. Mando Esq. the difference must be brought so clearly. If it were David M. Mando who signed for David M. Mando & co. there would have been a saving ground since David M. Mando is a known person who has been called to the bar and duly enrolled to practice as a solicitor and advocate in the Supreme Court of Nigeria. But in all the processes filed in this appeal the signatory to the is David M. Mando & co. who then is this David M. Mando

& Co and whether he is a person duly enrolled in the bar to practice as a Solicitor and Advocate? It may do well to point out that the issue at hand is not whether David M. Mando & Co. is registered as a firm of Legal Practitioner. Far from it, the issue is whether David M. Mando & Co can validly sign a notice of appeal without any particular legal practitioner appending his signature as a duly enrolled person on behalf of the firm. Even in the Registered Trustees of Apostolic Church V. Rahman Akindele’s case cited supra what saved the notice of appeal is the signature of Mr. Cole who signed the notice in addition to the firm name ”J. A. Cole & Co.”. As the name of Mr. Cole clearly appeared as a signatory to the document and knowing too well that he was registered as legal practitioner, the process was adjudged valid.”
The writ of summons and the statement of claim instituting suit No. K/201/04 before the lower Court having not been signed by a known and or identifiable legal practitioner by name, is null and void ab initio. Was the lower Court competent or seized of the jurisdiction to have heard and determined same. The law is trite, a

Court of law is competent to taking cognizance of a matter presented to it, for the purpose of determining such matter if:
(a). It is properly constituted as regards qualification of members of the bench and no member is disqualified for one reason or another;
(b). The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(c). The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.

Suit No. K/201/04 was not properly initiated before the lower Court. That Court had no jurisdiction in hearing and determining same. The entire proceedings before the lower Court was a nullity. Issue 2 & 3 are resolved in favour of the appellant.

On the 1st issue, Adi Esq., of learned counsel submitted that in an application for an order to set aside a default judgment, the Court has a duty to consider certain facts which have been enumerated in the case of William v. Hope Rise Society (1982) 1-2 SC (1982) All NLR P. 16- 7. Counsel further contended that though a Judge

has discretion to grant or refuse all application to set aside a default judgment, he must consider the facts listed in the case supra, otherwise any decision taken on such an application may not be sustained an appeal. counsel referred to page 75 lines 30-32 0f the record of appeal and submitted that the learned trial Judge of the lower Court erred in law when he stated that he would not bother in considering all the factors enumerated in the case of Williams v. Hope Rise Society (supra) in the application before him. Counsel submitted that by not considering all the factors enumerated in the case of Williams v. Hope Rise Society which was cited and relied on by the appellant, the learned trial Judge did not comprehend and appreciated the reasons given by the applicant why it failed to appear before the lower Court to defend the suit instituted by the respondent.

In the case of Williams v. Hope Rise society (1982) 1 ALL NLR P. 1-6-7 (also) (2001) 34 WRN P. 171 @ 177-178, the Supreme Court in considering an application for an order to set aside a default judgment, enumerated the factors to be considered before a Court could exercise its discretion to

grant an order to set aside a default judgment or not. Idigbe JSC (of blessed memory) said:
?When, however, the application before the Court is for it to set aside its own judgment given in the absence of one of the parties before it, in order to give to the other party opportunity of being heard different consideration apply. These were fully set out by me in Idam Ugwu and Ors vs Nwaji Aba and Ors (1961) All NLR 438 (See also Adebayo Doherty v. Ade Doherty (1964 N.M.L.R. 144 at 145). Among other things, the Court must consider (1) the reason for the applicants? 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 latter party (i.e 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, and (4) whether the applicants’ case is manifestly unsupportable; and I respectfully, agree with the views expressed by my

learned brother, my lord, Bello SPJ (as he then was) in Momoh v. Gulf Insurance Corporation (1975) (1) NWLR 184 at 786 that in addition to the foregoing factors the Court being asked to exercise its discretion to set aside its own judgment must also be satisfied that the applicant conduct throughout the proceedings i.e “form the service of the writ upon him to the date of judgment” has been such as to make his application worthy of a sympathetic consideration.”
See alsoMohmed v. Husseini (1998) 11-12 SCNJ P. 136 @ 153-154.
On page 75 lines 31-33 of the printed record of appeal, the learned trial Judge of the lower Court while considering the application of the appellant for an order to set aside the default judgment delivered on the 19th of May, 2016 said:
?The cases cited by both learned counsel on the principles of setting aside and other plethora of authorities are all unanimous that any Applicant wishing to bring an application for setting aside default judgment must show a good reason for being absent at the trial.
In the con of the application before me, I will not bother myself with the other principles. It will suffice if

I limit myself to the reason why the Applicant did not come forward and contest the claim of the plaintiff, herein the Respondent. I have already stated the reason offered by the Applicant in his Affidavit.”
The Supreme Court had stated in the case of Williams v. Hope Rise Society (1982) 1-12-SC that in an application to a Court of law to set aside its own judgment given in default, that is, in the absence of any of the parties in order to give the other party opportunity to be heard, different conditions apply which have been set out in Idam Ugwu & Ors v. Nwaji Aba & Ors (1961) All NLR P. 438, Adebayo Doherty v. Ade Doherty (1964) NWLR P. 144 @ 145. Among other things the Court must consider the following:
(i) The reason for the applicant’s failure to appear at the hearing or trial of the case in which judgment was given in his absence.
(ii) 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 subsist.
(iii) Whether the latter party (i.e. in whose favour the judgment subsist would be prejudiced or embarrassed upon an order for

rehearing of the suit being made, so as to render such a course in equitable, and
(iv) Whether the applicant’s case is manifestly unsupportable.
(v) That the applicant’s conduct throughout the proceedings i.e from the service of the writ upon him to the date of judgment, has been such as to make his application worthy of a sympathetic consideration.

In its ruling delivered on the 13th of December, 2001, which is on pages 74 to 76 of the printed record of appeal, specifically page 75 lines 31-35 thereof, the learned trial Judge, considered only one of the factors to be considered in the case of Williams v. Hope Rise Society (supra) when he said:
?In the con of the application before me, I will not bother myself with the other principles. It will suffice if I limit myself to the reason why the Applicant did not come forward and contest the claim of the plaintiff, herein the Respondent, I have already stated the reason offered by the Applicant in his Affidavit.”

Though a Court has discretion to grant an order to set aside its default judgment such exercise of the discretion must be within the ambit of the relevant and applicable

principles of law. By not considering other factors, other than “good reason for being absent” the learned trial Judge failed to consider the application of the appellant for an order to set aside the default judgment as required by law, that is judiciously and judicially, which is perverse, occasioning a miscarriage of justice to the appellant. I resolve issue 1 in favour of the appellant.

On issue 5, which is whether the appellant was not denied right of fair hearing by the lower Court when it adjourned the hearing of the case on 18/5/05 to 19/5/05 for judgment without affording him the right to cross-examine PW1 and to address the Court. Adi Esq., did submit that the failure of the lower Court to order for the issuance and service of hearing notice on the appellant for the hearing of the case on the 19th of May, 2005 when the respondent closed his case on the 18th of May, 2005 is a breach of the appellant’s right to fair hearing. A hearing notice ought to have been served on the appellant when the respondent closed his case on the 18/5/2005. Counsel contended that what really matters is whether the appellant was afforded the opportunity to present his

case, not whether the decision of the Court would not have been different even if he was given the chance to present his case. Counsel cited and relied on the cases Unibiz Ltd v, CBCL Ltd (2003) FWLR (Pt. 152) P.71; and UBA Plc v. Achiru (1990) 10 SCNJ P. 17 to buttress the submissions supra. The Court has been urged to resolve issue 4 in favour of the appellant.

Was the appellant denied fair hearing by the lower Court? On page 65 of the record of appeal, the proceedings of 18/5/2005 have been recording where the only witness called by the respondent testified. After the testimony of the witness, the lower Court adjourned the matter to the 19th of May, 2005, for judgment. There was no order to issue and serve the appellant with a hearing notice for the continuation of the hearing of the case on the 19/5/2005.

For the purpose of securing justice, the right to fair hearing is quite germane. The concept of fair hearing is hinged on the twin principles of natural justice, namely:
(a) Audi alteram paftem, which means/connotes that parties to a dispute must both be heard by the arbiter.
(b) Nemo judex in causa sua, which requires that a man

cannot be a judge in his own cause but must be free from bias or even livelihood of bias.
Both principle guarantees that a party to a dispute must be given a fair hearing. The right to fair hearing is a constitutional right enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria , 1999. See Vena v. Access Bank Plc (2015) All FWLR (Pt. 772) P. 1765 @ 1788.
Fair hearing in essence, means giving equal opportunity to the parties to be heard in the litigation before the Court. Fair hearing means a trial conducted according to all legal rules made to ensure that justice is done to the parties. Fair hearing in relation to a case means the trial of a case or the conduct of the proceedings therein in accordance with the relevant laws, rules of Court and principles of natural justice. See Pam vs. Mohammed (2008) 16 NWLR (Pt. 1112) Pl @ 68. See also INEC vs. Musa (2003) 3 NWLR (Pt. 806) P.7; UNB Ltd. Vs. Nwaokolo (1995) 6 NWLR (Pt. 12) and Ekpeto vs. Wamagho (2004) 13 NWLR (Pt. 905) P. 394.
In civil cases fair hearing entails the following which must be strictly complied with in the adjudication process by the Court.
(a) A

plaintiff or any party is entitled to counsel of his choice;
(b) A plaintiff must be afforded the opportunity to call all necessary witnesses in support of his case;
(c) A plaintiff by himself or counsel must have the opportunity to cross-examine or otherwise challenge the evidence of witnesses called by his adversary;
(d) At the close of the case and in accordance with the relevant Court rules, a plaintiff must have the same right as given to his adversary to offer by his counsel the final address on the law in support of his case.
Fair hearing is a constitutional provision under Section 36(1) 1999 Constitution (Altered), which is that:
“36 (1) in the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
The Courts have had in a plethora of decided cases enunciated the importance of the provisions of Section 36(1) of the Constitution, and the necessity

of its observance in the litigation processes by the Courts. In WAPAH V. MOURAH (2006) 18 NWLR (Pt. 1010) P. 1 @ 48-49, this Court re-emphasized that fair hearing as encompassed in the 1979 and 1999 Constitution whose provisions are impari materia with the 1999 constitute (altered) is not an imaginary proposition. It is a state of affairs that consists of many ingredients. Fair hearing under the Constitutions is an entrenched fundamental right. It encompasses not only compliance with the rules of natural justice- audi alteram and nemo iudex in causa sua- but also entails compliance with the provisions of Sections 33 and 36 of the Constitution. It also entails doing, during the cause of trial, whether civil or criminal trial, all the things which will make an impartial observer leaving the Court room to believe that the trial has been balanced and fair to both sides of the trial. All that is required for a fair hearing is that a party to an action should be heard.

Section 36(1) of the Constitution (1999) as (Altered) guarantees the right to fair hearing. An essential aspect of the fair hearing is that each party to the dispute or conflict must be given the

opportunity to be heard to present his own side of the dispute before a decision is taken by the Court. See BON v. ADEGOKE (2006) 10 NWLR (Pt. 988) P. 339 @ 356. The basic criteria and attributes of fair hearing include the following:
(a.)That the Court or Tribunal shall hear both sides not only in the case but also in all material issues in the case before reaching a decision which may be prejudicial to any party in the case;
(b.)That the Court or Tribunal shall give equal treatment, opportunity and consideration to all concerned;
(c.) That the Proceedings shall be heard in public and all concerned shall have access to be informed of such a place of public hearing; and
(d.) That having regard to all the circumstances in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done.

It is not in dispute, the appellant was not in Court on 18/05/2005 when the case was adjourned to 19/05/2005. The appellant was entitled to be served with hearing notice for the hearing of the case on the 19/05/2005. The lower Court ought to have ordered for the service of hearing

notice on the appellant for the hearing of the case on 19/5/2005 the date of the delivery of the judgment. The lower Court did not make an order that hearing notice be issued and served on the appellant for the hearing of the case on the aforementioned date. The appellant was therefore not in Court when the judgment was delivered on 19/5/2005.

In the adjudication processes the service of hearing notice on the parties for the hearing of a case pending before the Court is crucial. Without the service of hearing notice, a party cannot know the date his case would be heard by the Court. The Courts have had in a plethora of decide cases enunciated the principles of fair hearing touching on the necessity of serving hearing notice on parties. For instance in Nasco Management Service Ltd. v. A.N. Amaisu Transport Ltd. (2003) 2 NWLR (Pt. 804) P. 290 @ 338 ? 339, this Court per Mangaji, J.C.A (of blessed memory) had this to say on the fundamental nature of the service of hearing on parties in the adjudication process:
?It must be emphasized that hearing notice in our Adversity system of justice is very fundamental. Where service of hearing notice is

called for any proceedings conducted without due issuance of it is rendered null and void. It is a fundamental vice which easily vitiates proceedings. Where proceedings are conducted when no hearing notice is served on a party who should have been necessarily served the whole proceedings are rendered void no matter how well conducted they were.”

Ejiwunmi J.S.C (of blessed memory) when dealing with the right to fair hearing in the adjudication process had this to say in the case of Unibiz (Nig.) Ltd v. CBCL Ltd (2003) FWLR (Pt. 152)P.71 @ 92:
?Fair hearing has been interpreted by the Courts to be synonymous with fair trial and as implying that every reasonable and fair minded observer who watches the proceedings should be able to come to the conclusion that the Court or other Tribunal has been fair to all the parties concerned. See on this Muhammed v. Kano N.A. (1968) 1 ALL NLR 424 at P.426. There are certain basic criteria and attributes of fair hearing, some of which are relevant in this case. These include:
i. That the Court shall hear both sides only in the case but also in all material issues in the case before reaching a decision which

may be prejudicial to any pay in the case. See Sheldon v. Bromfield Justice (1964) 2 QB 573 at P. 578.
ii. That the Court or Tribunal shall give equal treatment, opportunity and considered to all concerned. See on this. Adigun v. Att-Gen, Oyo State & ORS. (1987) 1 NWLR (Pt. 53) 678.
iii. That the proceedings shall be held in public and all concerned shall access to and be informed of such a place of public hearing and
iv. That having regard to all the circumstances, in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done.
R. v. Sussex Justice, ex-parte McCarrthy (1924) 1 KB 256, @ 259; Deduwa & ORS v. Okorodudu (1976) 10 SC 329.?

When the respondent closed his case on 18/05/05 after the evidence of PW1, the learned trial Judge of the Lower Court ought to have ordered for the issuance and service of hearing notice on the appellant who was not in Court or represented by counsel on the 18/05/05. Instead, the learned trial Judge adjourned the case for judgment. Certainly, the appellant?s right to present his case was denied to him. In short, right

to fair hearing was denied to the appellant by the lower Court when judgment was delivered on 19/05/05 without giving him the opportunity to cross-examine the witness and address the Court before judgment.

Lack of hearing of one party, especially the party on record vitiates the whole trial, as however convincing the case made by the other party or parties who have been served. For it is only after a full consideration of the case made by both parties on record that the Court can make a just determination of the issues in controversy. See Pam v. Mohmed (2008) LPELR 2895 SC; (2003) 16 NWLR (Pt.112) P.1; Forcados Oro Obedo v. Olomu (1987) 3 NWLR (Pt. 509) P. 526. Breach of any of the principles of fair hearing particularly the breach of fair hearing arising from failure to serve hearing notice on a party that required to be so served, afflicts the proceedings of the Court even though it can be said to have arisen from the act of omission or commission in relation to the party not served. That is why the authorities have it that the principle of fair hearing is fundamental to all Court procedures and proceedings and that like jurisdiction, the absence of it

vitiates the proceedings in which it has been breached no matter how well conducted. I do not see how it can be said that all the parties in a proceeding have been given equal opportunity to prosecute and/or defend a case where one of the parties was not served with the hearing notice in respect of the date of hearing of the case/proceeding… After all, the settled position of law is that something cannot be put on nothing. The situation would have been totally different if the order made by the lower Court was against a party not on record of the Court. I resolve issue 5 in favour of the appellant’

With the resolution of all the issues in favour of the appellant, the appeal succeeds. The ruling of the lower Court delivered on 13th of December, 2001 is hereby set aside. Pursuant to Section 15 of the Court of Appeal Act, I make an order setting aside the judgment of the lower Court delivered on 19/05/05, being a nullity for reasons of incompetence of the writ of summons and the statement of claim and, secondly, for the breach of the appellant’s right to fair hearing in the conduct of the proceedings leading to the judgment. I also make an order striking

out suit No. K/201/2004, for being incompetent having been initiated by incompetent writ of summons and statement of claim. Each party to bear cost of prosecuting the appeal.

HABEEB ADEWALE OLUMIYIWA ABIRU, J.C.A.: I have had the privilege of reading the lead judgment delivered by my learned brother, Ibrahim Shata Bdliya, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide by the conclusions reached therein. I only wish to comment on two of the issues contended in the appeal.

The first issue is the competence of the originating processes by which the Respondent commenced and prosecuted the case before the lower Court. The writ of summons and the statement of claim were issued and signed by the law firm of Z. M. Umar & Co, rather than by a named and recognized Legal Practitioner registered and enrolled to practice law in Nigeria. The law on this point has been settled beyond peradventure by a long line of decisions of the Supreme Court and it is that the writ of summons and the statement of claim are nullities and that the entire proceedings conducted thereon and the

judgment entered by the lower Court are void ab initio. The requirement that all Court processes must be signed only by a recognized Legal Practitioner registered and enrolled to practice law in Nigeria or by the litigant himself, and not by a law firm, is a requirement of substantive law, and not of procedural law. It cannot be waived and it is irrelevant that the party complaining did not show that it suffered a miscarriage of justice or prejudice by such signing of the Court process and it is an issue that can be raised even at the Supreme Court for the first time ? Okafor Vs Nweke (2007) 10 NWLR (Pt. 1043) 521, Oketade Vs Adewunmi (2010) 8 NWLR (Pt. 1195) 63, SLB Consortium Ltd Vs NNPC (2011) 9 NWLR (Pt. 1252) 317, Braithwaite Vs Skye Bank Plc (2013) 5 NWLR (Pt. 1346) 1, First Bank of Nigeria Plc Vs Maiwada & Ors (2013) 5 NWLR (Pt. 1348) 444, Alawiye Vs Ogunsanya (2013) 5 NWLR (Pt. 1348) 570, Minister of Works and Transport, Adamawa State Vs Yakubu (2013) 6 NWLR (Pt. 1351) 481, and Okarika Vs Samuel (2013) 7 NWLR (Pt. 1352) 19. The judgment of the lower Court cannot thus stand. It must be set aside.

The second issue was that of fair hearing. The

records of appeal show that the Appellant did not enter appearance nor did it file a statement of defence to contest the case of the Respondent in the lower Court. The records show that on the 24th of March, 2005, Counsel to the Respondent applied for a date for hearing and the matter was fixed for the 20th of April, 2005 for hearing by the lower Court with a directive that hearing notice be served on the Appellant. The records show that trial took place on the 18th of May, 2005 and that the Respondent called one witness and at the conclusion of the evidence in chief of the witness, Counsel to the Respondent urged the lower Court to dispense with final addresses of the parties and to adjourn the matter for judgment. The lower Court acceded to the request and it adjourned the matter to the 19th of May, 2005 for judgment. The lower Court entered judgment on the 19th of May, 2005.
?
Counsel to the Appellant has contended in this appeal that by adjourning the matter for judgment after the conclusion of the evidence in chief of the plaintiff witness, the lower Court denied it the opportunity of cross-examining the witness and of addressing the Court and that this

intrigued the right of the Appellant to fair hearing. I will limit my comment on this contention to the tacit grant of the prayer of the Counsel to the Respondent to dispense with final addresses by the lower Court and its failure to adjourn the matter for final addresses after the close of the evidence of the plaintiff witness.

Now, the term “fair hearing” has been judicially interpreted to involve situations where, whether having regard to all the circumstances of a case, the hearing may be said to have been conducted in such a manner that an impartial observer will conclude that the Tribunal was fair to all the parties to the proceedings. It is said to mean a trial conducted according to all the legal rules formulated to ensure that justice is done to all the parties to a cause or matter – Ariori Vs Elemo (1983) 1 SCNLR 1, Kuusu Vs Udom (1990) 1 NWLR (Pt. 127) 421, Okafor Vs Attorney General, Anambra State (1991) 6 NWLR (Pt. 200) 659 at 678, Military Governor of Imo State Vs Nwauwa (1997) 2 NWLR (Pt. 490) 675, Bamgboye vs University of Ilorin (1999) 10 NWLR (Pt. 622) 290, Kalu Vs State (2011) 4 NWLR (Pt. 1238) 429. Fair hearing also postulates that parties

have a right to be heard at every material stage of the proceedings – Ekuma Vs Silver Eagle Shipping Agencies PH Ltd (1987) 4 NWLR (Pt. 65) 472 at 486, Agbahomovo Vs Eduyegbe (1999) 3 NWLR (Pt. 594) 170, and Agbiti Vs Nigerian Navy (2011) 4 NWLR (Pt. 1236) 175.

Without doubt, one of the legal rules formulated to ensure that justice is done to all the parties to a cause or matter in a trial is the right of a party to a case to address the Court after close of evidence. The hearing of addresses by every Court established by the Constitution of the Federal Republic of Nigeria 1999 is of Constitutional importance by virtue of Section 294 (1) of the Constitution which recognizes the right of parties to a suit to render addresses before judgment is delivered. The section reads:
?Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.?
This point was made in the cases of Ndu Vs State

(1990) 7 NWLR (Pt. 164) 550 at 560, Amough Vs Zaki (1998) 3 NWLR (Pt. 542) 483, Offor Vs State (1999) 12 NWLR (Pt 632) 608. The failure of a defendant to file pleadings does not take away his right to final address before a trial Court. This was explained in Faladu Vs Kwoi (2003) 9 NWLR (Pt. 826) 643 at 657 D-E by the Court of Appeal thus:
. A defendant who failed to file pleadings is still entitled to a hearing. He could, for example, decide to rely on a point of law inherent in the plaintiff?s case without the necessity of filing pleadings and adducing evidence. He may rest his case on the plaintiff?s case and simply wish to address the trial Court on issues rendered in the plaintiff?s case. All that is permitted by law.?
The statement of law was reiterated by the Court of Appeal in Onah Vs Okom (2011) LPELR-CA/C/22/20089. Address of counsel forms part of a party’s case and failure to hear the address of a party, however overwhelming the evidence on one side, taints the trial because in many cases, it is after the addresses that the Court finds that the law on the issue fought is not in favour of the evidence.

The totality of a case heard entails not only the evidence but also the addresses of counsel. Thus, the Courts have held that the denial of a party’s Counsel of the opportunity of addressing the Court, where established and proved, is not a mere irregularity but a defect in proceedings which strikes at the right of the party to fair hearing – Obodo Vs Olomu (1987) 3 NWLR (Pt 59) 111, Salami Vs Odogun (1991) 2 NWLR (Pt. 173) 291, at 301, Oyekan Vs Akinrinwa (1996) 7 NWLR (Pt. 459) 128, First Bank of Nigeria Plc Vs Ejikeme (1996) 7 NWLR (Pt. 462) 597, Duba Vs Saleh (1997) 1 NWLR (Pt. 488) 502, Eagle Construction Ltd Vs Onibugadu (1998) 1 NWLR (Pt. 533) 231, Kalu Vs State (2011) 4 NWLR (Pt. 1238) 429,Kabau Vs Rilwanu (2014) 4 NWLR (Pt. 1397) 284.

The Courts have consistency stated that the right of a person to fair hearing is so fundamental to our concept of justice that it can neither be waived nor taken away by a statute, whether expressly or by implication and it cannot be compromised in any way by any person or authority neither can its breach be acquiesced to – Ariori Vs Elemo supra, Pan African Bank Ltd Vs Ubani (1999) 13 NWLR (Pt. 633) 166, Bamgboye vs

University of Ilorin supra, Kenon Vs Tekam (2001) 14 NWLR (Pt. 732) 12, Afonja Communify Bank (Nig) Ltd Vs Akpan (2002) 16 NWLR (Pt. 792) 154, Olufeagba Vs Abdul-Raheem (2009) 18 NWLR (Pt. 1173) 384, First Bank of Nigeria Plc Vs TSA Industries Ltd (2010) 15 NWLR (Pt. 1216) 247. What the lower Court did in instant case, at the prompting of the Counsel to the Respondent, was to take away the right of the Appellant to deliver a final address. The lower Court possessed no such powers.

It is trite that the rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice has been done because of lack of hearing. It is whether a party entitled to be heard before deciding had in fact been given an opportunity of being heard. The Courts are unanimous that any breach of the right to fair hearing, particularly in trials, naturally vitiates such proceedings and renders the same null and void – Akoh Vs Abuh (1988) 3 NWLR (Pt. 85) 696, Ceekay Traders Ltd Vs General Motors Co Ltd (1992) 2 NWLR (Pt. 222) 132, Oyeyemi Vs Commissioner for Local Government, Kwara State (1997) 2 NWLR (Pt. 226) 661, Military Governor of Imo State Vs

Nwauwa (1997) 2 NWLR (Pt. 490) 675, Olufeagba Vs Abdul-Raheem supra, Agip (Nig) Ltd Vs Agip Petrol International & Ors (2010) 5 NWLR (Pt. 1187) 348, Agbiti Vs Nigerian Navy supra. Thus, once an appellate Court comes to the conclusion that the party was entitled to be heard before a decision was reached but was not given the opportunity of a hearing, the judgment entered is bound to be set aside – Kotoye Vs Central Bank of Nigeria (1989) 1 NWLR (Pt. 98) 419, Olumesan Vs Ogundepo (1996) 2 NWLR (Pt. 433) 628, Ogundoyin Vs Adeyemi (2001) 13 NWLR (Pt. 730) 403, Olufeagba Vs Abdul-Raheem (2009) 18 NWLR (Pt. 1173) 384, Fulani Vs Rufawa (2013) LPELR-CA/K/203/2011. Thus, on this basis, the judgment is liable to be set aside.

It is for these reasons, and the fuller exposition of the law in the lead judgment, that I agree that there is merit in this appeal. I allow the appeal. I too set aside the judgment of the High Court of Kano State in Suit No K/201/2004 delivered by Honorable Justice Sadi Mato on the 19th of May, 2005. I abide the order on costs in the lead

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: l agree.

Appearances

N. I. Adi, Esq.For Appellant

AND

Z. M. Umar, Esq.For Respondent