GLORIA KANU & ORS v. OBA PETER CHUKWUEMEKA (2019)

GLORIA KANU & ORS v. OBA PETER CHUKWUEMEKA

(2019)LCN/13113(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 16th day of April, 2019

CA/OW/343/2013

Justices

RAPHAEL CHIKWE AGBOJustice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPEJustice of The Court of Appeal of Nigeria

ITA GEORGE MBABAJustice of The Court of Appeal of Nigeria

Between

Text

1.GLORIA KANU
2.DAVID NWACHUKWU
3.ANN OKORO
4.UNITED BANK FOR AFRICA PLCAppellant(s)

AND

OBA PETER CHUKWUEMEKARespondent

RATIO

THE FUNDAMENTAL RIGHT OF FAIR HEARING

Law reports are replete with decisions of the Supreme Court and this Court in respect of breach of fair hearing and its effect where it is found to be established. In this regard see the case of ARIJE V. ARIJE (2018) LPELR 44193 (SC) wherein the Supreme Court dwelling on fair hearing stated per Kekere-Ekun, JSC; thus: –
“Now the right to fair hearing is one of the fundamental rights guaranteed in Chapter IV of the 1999 Constitution. See Section 36 (1) thereof. It is one of the twin pillars of natural justice which support the Rule of Law. The pillars are an indispensable part of the process of adjudication in any civilized society. They are: audi alteram partem (hear the other side i.e. one must be heard in his own defence before being condemned) and nemo judex in causasua (no one may be a judge in his own cause). —
The concept of fair hearing encompasses not only the principle of natural justice in the narrow technical sense just referred to, but in the wider sense of what is right and fair to all concerned and is seen to be so.— Fair hearing requires that the trial must be conducted according to all applicable legal rules with a view to ensuring that justice is done to all parties before the Court. The law is trite that any proceedings conducted in breach of the right to fair hearing are a nullity and liable to be set aside.— It is equally trite that where the principle of natural justice is violated, it does not matter whether if the proper thing had been done, the decision would have been the same, the proceedings would still be null and void. PER LOKULO-SODIPE, J.C.A.

WHETHER OR NOT A COURT CAN ADJOURN A MATTER FOR JUDGMENT WITHOUT ASKING THE PARTIES TO ADDRESS IT

A Court of law cannot adjourn a matter for judgment without asking the parties to address it. If a case is not defended, as in the instant case, the trial Judge must ask the plaintiff to address. And I should add that the duty of the Court is more compelling where the plaintiff is not represented by counsel. In Niger Construction Ltd. v. Okugbeni (1987) 4 NWLR (Pt. 67)787, Agbaje, JSC, said at page 795:
“The right of Counsel to address the Court is provided for by the rules of Court, so there can be something in a complaint by Counsel that the trial Court has deprived him of his right to address the Court on behalf of his client at the close of the case for both sides, for any discretion possessed by a trial Judge must be exercised within the confines of the law.”
In Obodo v. Olomu (1987) 3 NWLR (Pt. 59) 111, this Court held as follows:
(1) Address of Counsel form part of the case and failure to hear the address of one party however overwhelming the evidence on one side vitiates the trial.
(2) In a written address, the Court must ensure that parties exchange addresses.
(3) An appellate Court should not speculate on what the effect of a plaintiffs counsel address have been on the learned trial Judge’s judgment because until the learned trial Judges mind is exposed to an address, it is impossible to say what effect the address would have on the Judges mind.
Delivering the leading judgment of the Court, Belgore, JSC said at page 120:
“The procedure whereby the parties to a case at conclusion of evidence are to address the Court on the evidence before the Court, enumerating the issues canvassed and adverting to the law governing the issues has taken such a root in our superior Courts that denial of it cannot be regarded as mere procedural irregularity.
Obaseki, JSC in his concurring judgment, added at pages 123 and 124:
“The hearing of addresses by every Court established by the Constitution of the Federal Republic of Nigeria is recognised by the Constitution. It is to be given before judgment isdelivered. See Section 258(1) of the Constitution of the Federal Republic of Nigeria, 1979. Its beneficial effect and impact on the mind of the Judge is enormous but unquantifiable. The value is immense and its assistance to the Judge in arriving at a just and proper decision, though dependent on the quality of address cannot be denied. The absence of an address can tilt the balance of the learned Judges judgment just as much as the delivery of anaddress after conclusion of evidence can.”
See also the case of MAINS VENTURES LTD V. PETROPLAST INDUSTRIES LTD(2000) LPELR 6868(CA). PER LOKULO-SODIPE, J.C.A.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment delivered on 24/11/2011 by the High Court of Justice, Abia State holden at Aba presided over by Hon. Justice L. Abai (hereafter to be simply referred to as the lower Court and learned trial Judge respectively).

The Respondent herein as Plaintiff before the lower Court initiated the instant case against the Appellants herein as Defendants claiming the following reliefs: –
(1) The sum of N500,000,000 being damages for negligent and wrongful dishonour of Plaintiffs Cheque by Defendants and consequent damage to his business and reputation.
(2) 10% interest of (sic) the judgment sum until its final liquidation.

Parties duly filed and exchanged pleadings and same were amended as considered appropriate; pursuant to orders made by the lower Court. Having reviewed and evaluated the evidence (oral and documentary) placed before it by the parties; and having also had the benefit of the written addresses of the parties (but not the reply on point of the Appellants as they did not

file any), the lower Court resolved the issues formulated for the determination of the case as it considered expedient and entered judgment for the Respondent thus: –
Finally, in deciding the amount of damages to award, I have taken into account, the effect the dishonour has had on the claimant and the present purchasing power of the naira. The claimant has asked for the sum of five hundred million naira as damages, it is my view that the sum of three million will be adequate to compensate him.
Judgment is hereby entered for the claimant against the 4th Defendant as follows:
1. ln the sum of three million naira only being damages for the negligent and wrongful dishonour of the claimants (sic) cheque.
2. 10% interest on the judgment sum from the date of judgment until its final liquidation.

Being dissatisfied with the judgment of the lower Court, the Appellants initiated the instant appeal by lodging at the registry of the lower Court on 12/12/2011 a notice of appeal dated 9/12/2011. The process contains six grounds of appeal. I consider it expedient to re-produce the grounds and their respective particulars as some of the

grounds ex-facie bring to the fore the issue of fair hearing. They read thus: –
GROUNDS OF APPEAL
1. ERROR IN LAW
The learned trial Judge erred in law, when he in the judgment made use of the Claimant’s Written Address without setting aside the Order of foreclosure of Claimant from filing address, which he made on the 26th day of May, 2011.
PATICULARS OF ERROR
It is our law that our Courts maintain their Orders except such Orders are set aside no step will be taken against a Court Order, in the present case, the Claimant/Respondent’s Solicitor did not file Written Address in response to the Defendants/Appellant’s Written address after several adjournments and the learned trial Judge on the 26th day of May, 2001 made an Order foreclosing the Claimant/Respondent’s Counsel from filing a Written Address and adjourned the matter for Judgment despite the fact that the Claimant/Respondent filed a Motion praying the lower Court to set aside the Order of foreclosure made earlier, the learned trial Judge did not set aside the Order of foreclosure but went on to make use of the Claimant/Respondent’s written address to deliver Judgment

despite the pending Order for foreclosure.
2. ERROR IN LAW
The learned trial Judge erred in law when he went on to deliver Judgment on the matter and made use of the Claimant’s Solicitor’s written address without hearing and determining of the Claimant’s 2 (two) pending Motions for extension of time to file written address and another Motion for setting aside the Order of foreclosure made against the Claimant from filing a written address.
PARTICULARS OF ERROR
In this matter, after the Claimant/Respondens Solicitor was foreclosed from filing written address, the Claimant/Respondents Solicitor filed firstly a Motion for extension of time within which to file his written address and a second Motion for an Order setting aside the foreclosure Order for filing written address made against the Claimant/Respondent earlier but the lower Court went on to deliver Judgment without hearing the 2 (two) pending Motions contrary to our law that a Court of Law must hear and determine any pending Motion before delivering Judgment in a matter.
3. ERROR IN LAW
Denial of fair hearing to the Defendants/Appellants in that they were

denied the opportunity of their Counsel replying on point of law to the Claimant’s Written Address, which the learned trial Judge had earlier foreclosed the Claimants from filing but later made use of it without hearing and determining the Claimant’s Motion for setting aside the Order of foreclosure but during the Judgment made use of the Claimant/Respondent’s Counsel’s written address without regularizing it, which made it impossible for the Defendants/Appellants’ Counsel to reply on point of law to the Claimant/Respondent’s written address at the time of Judgment when it was let in.
PARTICUALRS OF ERROR
In our law, each party’s Counsel must be given an opportunity to address the Court before Judgment is delivered, in this case, the lower Court foreclosed the Claimant/Respondent’s Counsel from addressing the Court after the Defendants/Appellants’ Counsel filed his written address and after several adjournments without the Claimant/Respondent’s Solicitor filing his address, incidentally the Claimant/Respondent’s Solicitor filed 2 (two) Motions, the first for extension of time within which to file the written address and the second an Order setting

aside the Order of foreclosure earlier made against the Claimant/Respondent, the Defendants/Appellants are entitled to reply on point of law but this should be after hearing and granting the Motions of the Claimant/Respondent and the Order of foreclosure set aside and the Claimant/Respondent’s Solicitor’s address filed after the order of foreclosure without the Motions being heard nor the Order of foreclosure set aside, the learned Judge during the Judgment made use of the Claimant/Respondents written address, which made the opportunity of Defendant/Appellant’s Counsel replying on point of law to elude him, which is a clear case of denial of fair hearing.
4. ERROR IN LAW
The learned trial Judge erred in law when he found that the 1st and 3rd Defendants did not testify when all the Defendants filed a joint Statement on Oath and the DW1 testified on their behalf.
PARTICULARS OF ERROR
It is our law that in any proceeding, where there are many parties, one witness can testify on their behalf, in the present case, there is only one defence witness who averred that his Statement on Oath is for all the witness but despite this averment, the

learned trial Judge found that the 1st and 3rd Defendants did not testify.
5. ERROR IN LAW
The learned trial Judge erred in law when in deciding the amount of damages to award, he took into account, the effect the dishonour of the Cheque had on the Claimant, which was not pleaded by the Claimant and was not in evidence or address.
PARTICULARS OF ERROR
In our law any fact not pleaded goes to no issue and even where evidence is given on a fact not pleaded, the evidence goes to no issue, in the present matter, the Claimant did not plead the effect the dishonoured cheque had on him neither was it canvassed in evidence but despite these shortcomings the learned trial Judge made finding on the effect the dishonour of cheque had on the Claimant.
6. ERROR IN LAW
The learned trial Judge erred in law when he based the award of damages on the present purchasing power of the Naira, which issue was not raised by the Claimant or Defendants, without calling both parties to address him on the present purchasing power of the Naira.
PARTICUALRS OF ERROR
In our law, both Counsel must be called upon to address the Court on any new issue

raised by the Court suo motu, in the present case the Claimant/Respondent did not canvass the issue of the present purchasing power of the Naira, but despite this, the learned trial Judge went on to award damages of the sum of N3 Million in favour of the Claimant/Respondent without calling on both parties or their Counsel to address him on the effect of the present purchasing power of the Naira as it relates to award of damage.

The reliefs which the Appellants seek from this Court are to the effect that the appeal be allowed; the judgment of the lower Court be set aside; and the claims of the Respondent be dismissed.

The appeal was entertained on 16/1/2019 and learned counsel D.O. Uruakpain urging the Court to allow the appeal adopted and relied on the Appellants brief of argument dated 25/2/2015 and filed on the same date but deemed to have been properly filed on 2/3/2015 as well as Appellants reply brief of argument dated 20/11/2017 and filed on 22/11/2017 but deemed as properly filed on 16/1/2019.
In the same vein, learned counsel L.I. Nwaogwugwu adopted and relied on the Respondents brief of argument dated

10/10/2016 and filed on 5/6/2017 but deemed to have been properly filed on 16/1/2019, in urging the Court to dismiss the appeal.

At the hearing of the appeal, learned counsel for the Appellants orally married or tied the issues formulated for the determination of the appeal in the Appellants brief of argument to the grounds of appeal in the notice of appeal. He stated that issues 1, 2, 3, 4, and 5, in the Appellants brief of argument were distilled from grounds 1, 2, 3, 5 and 6 respectively of the grounds of appeal. He said that ground 4 should be deemed as abandoned as no issue was distilled from it. Appellant ground 4 in the notice of appeal having been expressly abandoned by the non-formulation of an issue therefrom, is accordingly struck out without ado.

The issues formulated for the determination of the appeal by the Appellants are as follows: -1. Whether the learned trial Judge was right when he deemed the written address of the learned Respondent’s Counsel as adopted and made use of it in his judgment without first setting aside the Order of foreclosure made on 26th day of May 2011, against the Respondent

from filing a written address thereby making it impossible for the Appellants’ Counsel to write and file his reply on point of law?
2. Whether the learned trial Judge was right when he went on to make use of the Respondent’s written address in his judgment without first hearing and determining the Respondent’s 2 (two) Motions for (1) setting aside the Order of Foreclosure he made against the Respondent from filing a written address and (2) the Motion for extension of time within which to file a written address and deemed (sic) the written address already filed by the Respondent as properly filed, which occasioned miscarriage of justice to the Appellants in that they were denied their right of filing a Reply on Point of Law?
3. Whether the learned trial Judge did not deny the Appellant fair hearing, when he in his judgment deemed the Respondent’s written address properly filed without the hearing and determination of the Respondent’s Motions for setting aside the Order of foreclosure against him from filing written address and the motion for extension of time within which to file written address and deem the written address already filed as proper,

thereby denied the Appellant’s (sic) the opportunity of their Counsel filing a reply on point of law to the legal issues raised in the Respondent’s Counsel’s written address, which amounts to denial of fair hearing to the appellants and occasioned a miscarriage of justice to them?
4. Whether the learned trial Judge was right when in his judgment, he took into account the effect the dishonor of the Cheque had on the Respondent when the Respondent did not plead the effect the dishonoured Cheque had on him and did not give evidence on it?
5. Whether the learned trial Judge was right in law when he based the award of damages on the present purchasing power of the Naira, an issue not raised by the Respondent, without first, calling both the Appellant (sic) and the Respondent to address him on the issue of present purchasing power of the Naira?

In his brief of argument, the Respondent adopted the issues formulated for the determination of the appeal by the Appellants. He however observed that issues 1-3 of the five issues formulated by the Appellants for the determination of the appeal, even though differently couched can be said to one.

This is because, the said three issues border on the use of his (Respondents) final address by the lower Court, without first entertaining and resolving the motions to regularise the position of the said final address as well as the non-giving to the Appellants of an opportunity to file their reply on points of law.

The appeal will be resolved on the issues formulated by the Appellants for its determination against the backdrop of the adoption of the said issues by the Respondent and issues 1-3 of the five issues formulated by the Appellants will be considered together and resolved as one issue in this judgment as the observation of the Respondent that they are in effect one issue, in my considered view, is apt or apposite.

With particular reference to their issue 1, the Appellants referred to pages 72-73 of the record as disclosing that the lower Court on 26/5/2011, in its ruling allowed them to adopt their written address as a result of the non-filing a written address by the Respondent and adjourned the matter to 29/6/2011, for judgment. The Appellants submitted that the inescapable conclusion from the ruling of the lower Court on the said

26/5/2011, is that the said Court foreclosed the Respondent from filing a written address and that this resulted in them (Appellants) adopting their written address with judgment being reserved in the case for 29/6/2011. It is the stance of the Appellants that the filing on 24/6/2011 of a motion by the Respondent for an order setting aside the order of foreclosure made against him, confirmed their position. Stating to the effect that there is nowhere in the record, that the lower Court entertained the aforementioned motion brought by the Respondent, the Appellants submitted that it was wrong for the lower Court to have taken the written address of the Respondent as having been adopted by him as shown on page 87 of the record; and that this has occasioned them (Appellants) a miscarriage of justice. This is because the non-setting aside by the lower Court of its order foreclosing the Respondent from filing a written address deprived them (Appellants) the opportunity to file a reply on point of law to the said Respondents written address. It is the stance of the Appellants that the order of the lower Court foreclosing the Respondent from filing a written

address like any judgment or order of a Court remains binding and valid until set aside and cases considered relevant were cited in aid.

With particular reference to their issue 2, the Appellants said to the effect that it was obvious from the record that after the Respondent was foreclosed from filing a written address he filed two motions: (i) for an order setting aside the order of foreclosure made against him and reference was made to pages 74-76 of the record; and (ii) for orders extending time for him (Respondent) to file his written address and deeming the written address filed out of time, as properly filed, the fees therefor, having been paid and reference was made to pages 77-82 of the record. Having stated that there is nowhere in the record that the lower Court heard and ruled one way or the other on these 2 motions, but just took the said written address of the Respondentas having been adopted by him (without any mention of the 2 motions that were yawning before it in its case file), the Appellants submitted that the procedure adopted by the lower Court was wrong in law. This is because the lower Court had a duty to determine any motion pending

before it prior to delivering judgment in the matter before it; and cases considered relevant were cited.

With particular reference to their issue 3, it is the stance of the Appellants that their right to fair hearing which is an important and constitutional issue, had been infringed or violated, by the procedure adopted by the lower Court in deeming the Respondens written address as properly before it, in its judgment. That they (Appellants) were thereby denied the opportunity of filing a reply on point of law. Reliance was placed on Section 36(1) of the amended 1999 CFRN; particularly the aspect of the provisions therein, that relate to the first pillar of natural justice audi alteram partem. It is the stance of the Appellants that it is clear from pages 80-81 of the record (i.e. Respondents written address) that the Respondent cited legal authorities they (Appellants) had no opportunity to reply to on point of law. Having stated to the effect that the proper procedure the lower Court ought to have adopted, was to have heard the motion to set aside the order of foreclosure and set its earlier order of foreclosure aside; and then to

have heard the motion for extension of time and to have regularised the Respondents written address and given them (Appellants) time to file their reply on point of law before delivering judgment in the matter, the Appellants submitted to the effect that the failure of the lower Court to have followed the proper procedure, has denied them of fair hearing and that the breach of their right to fair hearing automatically nullified the judgment of the lower Court. Cases considered relevant were cited in aid of the Appellant position.

The Respondent dealt with Appellants issue 1 at paragraphs 3.02-3.09 of his brief of argument. The first line or two lines of paragraph 3.02 of the Respondents unpaginated brief are illegible. This much the Appellants observed in their reply brief filed in response to the Respondents brief. From the remaining legible portion of the said paragraphs 3.02-3.09, the stance of the Respondent is to the effect that given the additional record of appeal (which was compiled by his counsel), it was clear that the lower Court sat on 27/6/2011 and 7/7/2011 and that the Appellants were aware of these

hearing dates as their counsel was served with the motions/and a hearing notice. That the Appellants only intended to mislead this Court in their stance that the lower Court did not first set aside the order of foreclosure it earlier made, before using his (Respondents) final written address. It is also the stance of the Respondent that though it is true that the lower Court on 13/4/2011 allowed the Appellants to adopt their written address, as he (Respondent) did not file a written address, there was however no order of foreclosure made by the said Court that needed to be set aside before he (Respondent) could file his final written address. That despite this, he still filed a motion praying the lower Court to set aside the order of foreclosure. That it is clear from the additional record that the lower Court sat on 27/6/2011 and that the motions he (Respondent) filed on 14/6/2011 and 21/6/2011 (sic), and which were served on the Appellants and fixed for 20/6/2011 for hearing, were later heard on 27/6/2011. That the certified record of proceeding for 27/6/2011 speaks for itself and requires no explanation. That it is clear from the additional record

that the lower Court by its order set aside its order of foreclosure and extended time for him (Respondent) to file his final written address and the matter adjourned to 7/7/2011 for final adoption. That the lower Court having set aside the order of foreclosure made against him, and having also extended the time for him to file a final written address, the window was open for him to file a written address. That the additional record also showed that the lower Court made an order for hearing notice to be served on the Appellants through their counsel and that this order was complied with. That a look at the proceeding of the lower Court for 7/7/2011 shows to the effect that hearing notice was served on the Appellants and that it was as a result of this that their counsel showed up on that date and on which date his (Respondens) final address was adopted. That this was why the lower Court made use of the written address in question in its judgment. The Respondent further submitted that the Appellants had ample time to file a reply on points of law to his (Respondents) final written address but they did not do so from 7/7/2011 to 14/10/2011 (sic:

24/11/2011) when the lower Court delivered its judgment. The Respondent stated the position of the law to be that where a party is given the opportunity to present his case and he fails to do so, he cannot blame anyone for the failure and the case of Bill Construction Co. Ltd v. Iman & Sons Ltd 2007 CHR 28, 30 was cited in aid.(Bold and underline provided by me).

Respondents response to Appellants issue 2 in my considered view is a rehash of his submissions under his issue 1 and therefore requires no further consideration.

Dwelling on Appellants issue 3, the Respondent submitted that the Appellants were not denied fair hearing by the lower Court when in its judgment it deemed his (Respondents) written address as properly filed. It is also the stance of the Respondent that the lower Court was justified in its position because it had taken and granted the two motions filed and served on the Appellants in respect of the order of foreclosure and extension of time on 27/6/2011, and the fact that his (Respondents) final written address wastak on 7/7/2011. The Respondent submitted to the effect that the

Appellants having been served with his two motions for the setting aside of the order of foreclosure made by the lower Court and for extension of time, which were taken on 27/6/2011 and on which date they were absent, and the matter adjourned till 7/7/2011, it behoved their counsel as a diligent lawyer to have found out the new date of the matter from time to time. That Appellants counsel from the time he was served, had ample opportunity to prepare his further address for 7/7/2011 but did not do so and neither filed a motion for extension of time to file the Appellants reply or points of law out of time. That even on the date of judgment, on 14/11/2011 (sic: 24/11/2011), if Appellants counsel had filed a motion for the purpose of filing a further address, the same would have been taken but that learned counsel gave no indication in this regard. That he listened to the judgment in good faith. It is the stance of the Respondent that the Appellants had nothing to file on points of law as they had ample opportunity to have done so but did not do so. That they have no one to blame but themselves and the case of

Government of Anambra State v. Nwobodo 1992 7 NWLR PT. 256, 711-725 was cited in aid.

In their reply brief of argument filed in response to the Respondents brief of argument, the Appellants dwelling on the Respondens issue 1, submitted to the effect that the Respondents position that they (Appellants) were aware of the motions the Respondents filed, is incorrect. This is because they (Appellants) were not served with the said motions. The Appellants equally stated that they were not aware of the proposed sitting of the lower Court that took place on 20/6/2011 or 27/6/2011 and referred to the additional record filed by the Respondent in support of their stance. It is the stance of the Appellants that the additional record of appeal shows clearly that there is no proof of service of the motions in question, on them. The Appellants submitted that it is trite law that proof of service can only be established by an affidavit of service deposed to by the Court bailiff that served the Court process in question and cited the cases of Vab Petroleum v. Momah (2013) SCNJ 289 at 313 and Maduka v. Ubah (2015) 11 NWLR (Pt.1470) 201at 221 in aid. It is the stance of the

Appellants that as there is no such affidavit of service in the additional record compiled by the Respondent, the inescapable conclusion is that they were not served the motions in question. It is the stance of the Appellants to the effect that their position in this regard is fortified as the proceedings of the lower Court for 26/5/2011 on pages 72-73 of the record show that they adopted their written address dated 11/3/2011 and filed on 14/3/2011 and that the lower Court adjourned to 29/6/2011 for judgment. The Appellants submitted that the proceeding for 27/6/2011 before the lower Court reflected in the additional record of appeal, is a surprise to them and looks spurious. This is because, they (Appellants) were not aware of the motions, which they saw for the first time during the settlement of record and were also not aware of the proceedings of 27/6/2011. The Appellants stated that the yawning issue was how the lower Court that had adjourned the matter on 26/5/2011 for judgment on 29/6/2011, came to fix the said motions filed by the Respondent, to 27/6/2011 (i.e. 2 days before the judgment date) without setting aside the earlier order made at the

proceedings whereat it adjourned the matter for judgment. That this is particularly so, as it is clear from the proceedings for 27/6/2011 contained in the purported additional record of appeal, that the lower Court only reflected that their counsel was not in Court and did not state the reason for this. That the lower Court also never inquired whether they (Appellants) were served with the Respondents motions which it ought to have done. That the duty is on a party who files a process in a matter to ensure the service of the same on all parties in the proceedings. This is because failure to do so would deprive the Court of jurisdiction to grant any relief in the matter and the case of M.T. “Delmar” v M.T. “Ane (Ex MT Leste)” (2016) 13 NWLR (Pt.1530) 482 at 509, was cited in aid. The Appellants submitted that since it was obvious that they were not served with the Respondents motions and as there was no affidavit of service, the inescapable conclusion is that the proceedings of 27/6/2011 and the order made therein were made without jurisdiction. This Court was urged to so hold and therefore resolve issue 1 in favour of the Appellants.

Dwelling on Respondents issue 2, the Appellants denied the stance of the Respondent that they purposely refused to include in the record of appeal the processes contained in the additional record. They stated that the documents compiled in the record of appeal are the ones certified by the registrar of the lower Court and were those in the case file and record book of the lower Court when the record of appeal was settled in the presence of the respective counsel to the parties. Dwelling further on the issue at hand, the Appellants submitted to the effect that the proceeding of 7/7/2011 which stemmed from the orders (if any) that were made on 27/6/2011, were so made without jurisdiction due to the non-service of the Respondents motions on them (Appellants); and that the said orders ought to be set aside by this Court. That if the Court does this, it becomes obvious that the proceedings of 7/7/2011, have no basis at all. The Court was therefore urged to resolve issue 2 in favour of the Appellants.

Reverting to the additional record and which the Appellants had earlier referred to asspurious, the Appellants

catalogued why this is so. In particular, the Appellants claimed that their counsel was not in Court on 27/6/2011 and did not ask that the matter be stood down till 10am. That their counsel neither wrote for a stand down and there was no reason given as why he was quoted to have asked for a stand down till 10am. Secondly, the Appellants observed that if Mr. Bishop, on 7/7/2011 adopted the final written address of the Respondent filed on 14/6/2011, as reflected in the additional record, how come the lower Court in its judgment on page 87 of the record came to record “I have taken the address filed by the Learned Counsel for the Claimant as having been adopted. The Appellants stated that the query from the foregoing is, if, the Respondent’s written address was adopted on 7/7/2011, will the lower Court in its judgment have deemed the same address adopted by the Respondent on 7/7/2011 as having been adopted on 24/11/2011 and they answered this the negative. The Appellants submitted that it was therefore obvious that their arguments on their issues 1 3, are based on the act of the lower Court in taking the written address filed by the Respondent as

having been adopted in its judgment without giving them (Appellants) the opportunity to file a reply on point of law. Also dwelling on their position that the additional record was for the purpose of this appeal and is spurious, the Appellants with particular reference to the purported proceedings of 27/6/2011 and 7/7/2011, referred to the statement of the lower Court that says Court, I will take the address as having been adopted” vis-??-vis the recording in the record of appeal in respect of the proceedings of 26/5/2011 on pages 72-73 and particularly the last paragraph on page 73 whereat it is recorded “Mr. Uruakpa, I adopt my written address dated 11/3/2011, I have nothing to ad. It is the stance of the Appellants to the effect that this Court would see that the proceedings of 26/5/2011 in the record of appeal, accords with what the lower Court stated in the judgment on page 87 of the record, to wit: “Learned Counsel for the Defendants adopted the written address filed by him on 26th May, 2011″. That it is therefore obvious that the additional record of appeal filed on 5/6/2017 is a forgery and made for purpose of this appeal.

This is more so as it was filed 4 years after the filing of the record of appeal; and 4 months after the Respondent was served with the motion for this appeal to be argued and determined on the Appellants brief of argument. Another reason why the Appellants have tagged the additional record as spurious, is that it is obvious from line 4 of the second to the last paragraph that the writer used a reported speech for the lower Court when it was recorded Court: says the matter is fixed for adoption. Counsel for the Defendant has had sufficient time for to (sic) reply on point of law if he wished. The Claimant can therefore go on”. That the Claimant did not go on. Yet the lower Court continued “Court: I will take the address filed on behalf of the Defendants as having been adopted, but that this is the same Court before which the Appellants had adopted their written address on 26/5/2011 with the matter being adjourned to 29/6/11 for judgment.

Dwelling on issue Respondents issue 3, the Appellants submitted that the case ofGovernment of Anambra State V. Nwobodo (1992) 7 NWLR (PT.256) 71 at 725, relied on by the Respondent is not apposite given

the facts of this case vis-??-vis the Respondents stance that they (Appellants) had nothing to file on points of law and that they had ample time to have done this and that they have only themselves to blame for not doing so. It is the stance of the Appellants that they were denied fair hearing and in this regard they again referred to the recording on page 87 of the record to wit: “Learned Counsel for the Defendants (Appellants) adopted the written address filed by him on the 26th May, 2011. I have taken the address filed by the Learned Counsel for the Claimant as having been adopted by him”. It is the stance of the Appellants that it is very clear that it was in the judgment of 24/11/2011, that the lower Court took the address of the Respondent as having been adopted by him. That this denied them (Appellants) the opportunity to reply on point of law and this amounts to a denial of fair hearing as provided for in Section 36(1) of the amended 1999 CFRN. This Court was again urged to resolve this issue in favour of the Appellants.

I consider it pertinent to say that I copiously highlighted the submissions of the parties herein,

because they are not only self-explanatory but they show how a seeming and ex-facie harmless recording or narration of events, by a Court can be escalated or elevated by an astute or shrewd counsel, to bring to the fore the breach of his clients right to fair hearing; once the facts relied upon are found not to be a figment of the imagination of the said astute counsel. This is more so as the Respondent in the instant appeal has somehow indicted the diligence of the Appellant counsel regarding the manner he has employed in the prosecution of the instant case and which indictment has resulted in the unveiled attack or challenge to the additional record compiled by the Respondent to the extent that criminality as it were, has been ascribed to the said record. I must however state that I do not intend to dwell on the perceived criminality in respect of the additional record of appeal or the challenge to its accuracy as it were. This is because, the attack or challenge has been done by an unorthodox or non-conformist procedure. While it is true that the law has always been that an affected party has a right to challenge the correctness of

record of proceeding see NUHU V. OGELE [2004] 1 MJSC 70; there is still need for this to be done by the procedure set down by law in this regard; and which procedure is as set out in many decisions of the Supreme Court and this Court. In this regard see amongst many others the case of ADEGBUYI V. APC (2014) LPELR 24214 (SC) wherein the Supreme Court dwelling on the issue as towhether the Court of Appeal was right in its conclusion that there was no evidence to contradict the printed record of appeal and that the accusation of alteration of record against the trial Judge was incompetent and unproved” said per Fabiyi, JSC; thus: –
The allegation of the appellant in respect of this issue is a very grave one….
The allegation is a very weighty one which touches on the integrity of the learned trial judge. The appellant maintained that this Court should apply due courage by denouncing the trial Court’s style of altering a judgment in chambers after same had been delivered in the open Court. According to counsel, such practice is alien to our jurisprudence and ought to be censored by this Court in strong expression in

order to send the right message to other judicial officers with such proclivity. What a sagacious call by a counsel to this Court.
The counsel urged the Court to use the learned trial judge as a ‘scape goat’ so that other judges involved in such unwholesome practice would get the right message. Learned counsel for the appellant should appreciate that the act of recording proceedings in Court is a judicial act which enjoys presumption of regularity under the law to use the language of Mallam Yusuf Ali, SAN for the 2nd respondent. The appellant who wants to impugn the integrity of the learned trial judge has a binding duty to prove the contrary. See — It is incumbent on the appellant to realize that the Court and parties are bound by the record of appeal as certified and it is presumed correct unless the contrary is proved. A party who challenges the correctness of the record of proceedings must swear to an affidavit setting out the facts or part of the proceedings omitted or wrongly stated in the record. Such affidavit must be served on the judge or registrar of the Court concerned. The Court below found that the affidavit of Oluwakemi Wey was

not served on the learned trial judge or the Registrar of the Court for them to react to same. It found that there is absolutely no evidence to fault the printed Record of Appeal. Furthermore, in so far as the learned trial judge was not given any opportunity to be heard on the complaints made by the appellant’s counsel, the complaint and/or accusation is incompetent and is therefore discountenanced. I agree completely with the decision of the Court below. The appellant failed to prove his allegation in tune with the required procedure and the law. The invitation to this Court to censor the learned trial judge hit the rock. It is hereby refused. A party along with his counsel should be wary of attempting to destroy the Court unjustly. I say no more. The issue is resolved against the appellant.
Though the Appellants in the instant appeal would appear to have directed the perceived criminality in respect of the additional record at the Respondents counsel who compiled the same, it however cannot be said that the said allegation has not rubbed on the lower Court and indeed on the learned trial Judge. Certified copies of proceedings are

evidently made from recordings by the trial Judge in the record book of the Court and processes in the case file of the Court. It would therefore appear that an allegation that processes and recordings contained in the additional record were not in the record and case file of the Court as at the time of settlement of the record by learned counsel to the parties, is nothing short of an accusation of doctoring of the record of the lower Court by the learned trial Judge by the subsequent generation and insertion of the materials into the record of the said Court and as reflected in the said additional record. This Court per Bulkachuwa, JCA; (as he then was), has held in the case of KWASHI V. PUSMUT (2010) 1 NWLR (Pt. 1176) 518 to the effect that a parts brief of argument is not the proper place to challenge the record of appeal. Accordingly, I will countenance the record of appeal and additional record of appeal both of which enjoy the presumption of regularity, to determine whether the Appellants have established the breach of their right to fair hearing audi alteram partem principle, by the lower Court in the course of its adjudication in the instant case.

view to ensuring that justice is done to all parties before the Court. The law is trite that any proceedings conducted in breach of the right to fair hearing are a nullity and liable to be set aside.— It is equally trite that where the principle of natural justice is violated, it does not matter whether if the proper thing had been done, the decision would have been the same, the proceedings would still be null and void.—
The grouse of the Appellants having regard to their issues 1-3 is simple. It is that the lower Court, given the procedure it adopted by taking the written address filed by learned counsel for the claimant (now Respondent) as having been adopted in its judgment, breached their (Appellants) right to fair hearing in that they were deprived of the opportunity to file a reply in the case. I do not understand the position of the Respondent to be that the Appellants have no right to file a reply subsequent to his (Respondent) filing his written address. In any case the Respondent cannot rightly dispute the right of the Appellants to file a reply in the instant case and/or proceedings therein. In this regard, see the Abia State

High Court (Civil Procedure) Rules 2009 which came into force of 1/7/2009 (hereafter to be simply referred to as Rules of Procedure of the lower Cour). The said Rules of Procedure under the heading PROCEEDINGS AT TRIAL in Orders 16 Rules 6(1) and (2); 8 and 9 provide thus: –
Rule 6
(1) A party shall close his case when he has concluded his evidence.
(2) Notwithstanding the provisions of Sub-rule 1 of this rule, the Judge may suo-motu where he considers that either party fails to conclude his case within a reasonable time, close the case for the party.
Rule 8
At the close of evidence, the defendant shall within 14 (fourteen) days file his written Address. Upon being served, the claimant shall within 14 days file his written address.
Rule 9
The defendant shall have a right of reply on points of law only. The reply shall be filed within 7 days after service of the claimant’s address. Thereafter, parties shall adopt their written addresses and may amplify orally. The oral amplification shall not take more than 10 (ten) minutes on each side unless the Judge otherwise directs.

Having regard to the notes of proceedings on page 53 of the record, trial in the instant case closed on 21/12/2010 and the lower Court adjourned the case to 17/2/2011 for adoption of final address to be filed in keeping with the provisions of Order 16 Rules 8 & 9 of the Rules of Court. Having regard to page 54 of the record, the case would appear to have come up after 21/12/2010 on 13/4/2011. The notes of proceeding for the said date disclose that learned counsel for the Appellants having informed the lower Court that the matter is for adoption but that he has not been served with the claimants address applied for an adjournment to enable the said claimant file his address. The Court on the said 13/4/2011 adjourned the case till 26/5/2011 and in doing this stated thus: –
Court: If by the next date the claimant has not filed his final written address, I will take it he does not want to do so. The matter is adjourned to 26/5/2011 for adoption of final address.
The question might be asked, as to what could have informed the attitude of learned counsel for the Appellants on 13/4/2011 to apply for an adjournment to enable the

Respondent file his address vis-??-vis the provisions of Order 16 Rules 8 and 9 (supra) pursuant to which the lower Court on 21/12/2010 ordered parties to comply with in the filing of their addresses? The reasonable (if not irresistible) answer, from my appreciation of the proceedings of the lower Court, is that learned counsel for the Appellants given the non-filing and service on the Appellants of the Respondents address, on or prior to that date 13/4/2011, was only laying bare the desire of the Appellants to exercise their right of filing a reply if deemed necessary. Having regard to the notes of proceedings for 26/5/2011 on page 72 of the record, it is clear that the Respondent and his counsel were not only absent but that the lower Court in the knowledge that the Respondent had not filed his final written address, permitted learned counsel for the Appellants to adopt the Appellants written address dated 11/3/2011 and filed on 13/4/2011 and adjourned the case till 29/6/2011 for judgment. It is therefore obvious in my considered view that on 26/5/2011 learned counsel for the Appellants could properly regard himself as done with the

case. This is because there is no law that compels any party in the knowledge of the date to which judgment have been reserved to attend Court on the judgment date or to make any further enquiry about the case after its reservation for judgment.
The lower Court, like any other Court, in my considered view definitely had the power to have re-opened the case (suo motu) to entertain any matter it considered fit and which it ought to have attended to prior to reserving judgment in the case to 29/6/2011 and particularly when the motions brought by the Respondent seeking for the regularisation of his written address were filed after the matter was adjourned on 26/5/2011 and before 29/6/2011. It is however for the lower Court to have confirmed that the fact of the re-opening of the case was duly brought to the notice of the Appellants, as they are not the party at whose instance the case was to be re-opened as it were. Clearly this considered view, is in agreement with the stance of the Appellants, to the effect that they can only be taken as being aware of any proceedings in the instant case after it was reserved for judgment if there is evidence

(proof) of the service on the said Appellants of the hearing notice in respect of the date the matter was to return to the cause list and also in respect of the motions filed by the Respondent which had necessitated this. It is in my considered view obvious that no such notice was ordered to be issued and if such notice issued, it was not served. This is because I am of the considered view that if such a Court process was issued (and which is the best evidence of notification in respect of a matter to a party entitled to such notification), all the Respondent ought to have done was to have compiled the process along with other proceedings in the additional record. This is against the backdrop of the position of the Respondent to the effect that if learned counsel for the Appellants had been diligent, he should have found out the position of the case. The question is, how is a counsel in whose presence a matter was adjourned for judgment and who has not been shown to have been served with a hearing notice in respect of the matter at any time after the adjournment of the case for judgment, be expected to go about seeking to find out the position of the said

judgment and the purpose of participating in whatever proceedings that resulted in the case being returned to the cause list? The position of the law would appear to be the other way round; in that it is a party who has brought a matter before the Court that has the duty of striving to know the position of his case, including any interlocutory application therein at all times. Against the backdrop of the view expressed hereinbefore, and in the absence of the proof of service of a hearing notice on the Appellants in respect of the hearing that came up before the lower Court whereat the Respondents motion on notice filed on 14/6/2011, was entertained and particularly as there was also no evidence of the service of the Respondents motions on the Appellants, it becomes obvious that the notes of proceedings for 27/6/2011 in the additional record of appeal relied on by the Respondent and in which the lower Court recorded that D. Uruakpa for Defendants not in Court, no reason is given for his absence is of no use in establishing the fact that the Appellants had notice of the dates proceeding and/or notice of the hearing of the said

motion on that date. The lower Court is a Court of record and when the said Court never ascertained from its case file that the Appellants were duly served with hearing notice in respect of the proceedings of 27/6/2011 and/or that the Appellants were served with the hearing notice in respect of the Respondents motion, in my considered view it becomes amusing that the lower Court expected a party who it has not verified or confirmed to have been served with hearing notice to have communicated to the said Court any reason for his absence on the hearing date of 27/6/2011 and thereby to have any kind of notice of whatever order it made on the said date. This is more so as the lower Court in the knowledge that the Appellants were absent on the said 27/6/2011 simply ordered that hearing notice in respect of the adjourned date of 7/7/2011 be served on the Appellantscounsel and never thought it fit to have directed that its order made on the said date, be also served on the said Appellants. The reasoning as stated hereinbefore in my considered view equally applies to the proceedings of 7/7/2011 whereat the lower Court adjourned the case till 14/10/2011

for judgment (but which it later delivered on 24/11/2011), after Mr: Bishop of counsel had informed the said Court as follows: –
Mr. Bishop: The Court ordered that hearing notice be served. The Respondent was served on 14/6/2011 with our application for extension of time. We are ready to adopt.
Court: Says the matter is fixed for adoption. Counsel for the Defendant has had sufficient time to reply on points of law if he wished. The claimant can therefore go on.
Court: I will take the address filed on behalf of the defendants as having been adopted.
Mr. Bishop: I adopt the final written address filed on 14/6/2011.
Court: The matter is adjourned 14/10/2011 for judgment.
The address or addresses of or by parties in a case after the close of the case of the defendant or the plaintiff, is an integral part of a trial and where a party is denied the right and this is established, the party so affected has every right to have all proceedings in the case thereafter, including the judgment delivered therein set aside. There are many cases on this issue but see the case of OKOEBOR V. POLICE COUNCIL (2003) LPELR 2458

(SC) out of the many. Therein, the Supreme Court per Tobi, JSC; said thus: –
— At the close of the case for the plaintiff and defendant, the Court asks the parties to address it. This is a duty which the Court must perform. A Court of law cannot adjourn a matter for judgment without asking the parties to address it. If a case is not defended, as in the instant case, the trial Judge must ask the plaintiff to address. And I should add that the duty of the Court is more compelling where the plaintiff is not represented by counsel. In Niger Construction Ltd. v. Okugbeni (1987) 4 NWLR (Pt. 67)787, Agbaje, JSC, said at page 795:
“The right of Counsel to address the Court is provided for by the rules of Court, so there can be something in a complaint by Counsel that the trial Court has deprived him of his right to address the Court on behalf of his client at the close of the case for both sides, for any discretion possessed by a trial Judge must be exercised within the confines of the law.”
In Obodo v. Olomu (1987) 3 NWLR (Pt. 59) 111, this Court held as follows:
(1) Address of Counsel form part of the case and failure to hear the address of one

party however overwhelming the evidence on one side vitiates the trial.
(2) In a written address, the Court must ensure that parties exchange addresses.
(3) An appellate Court should not speculate on what the effect of a plaintiffs counsel address have been on the learned trial Judge’s judgment because until the learned trial Judges mind is exposed to an address, it is impossible to say what effect the address would have on the Judges mind.
Delivering the leading judgment of the Court, Belgore, JSC said at page 120:
“The procedure whereby the parties to a case at conclusion of evidence are to address the Court on the evidence before the Court, enumerating the issues canvassed and adverting to the law governing the issues has taken such a root in our superior Courts that denial of it cannot be regarded as mere procedural irregularity.
Obaseki, JSC in his concurring judgment, added at pages 123 and 124:
“The hearing of addresses by every Court established by the Constitution of the Federal Republic of Nigeria is recognised by the Constitution. It is to be given before judgment isdelivered. See Section

258(1) of the Constitution of the Federal Republic of Nigeria, 1979. Its beneficial effect and impact on the mind of the Judge is enormous but unquantifiable. The value is immense and its assistance to the Judge in arriving at a just and proper decision, though dependent on the quality of address cannot be denied. The absence of an address can tilt the balance of the learned Judges judgment just as much as the delivery of anaddress after conclusion of evidence can.”
See also the case of MAINS VENTURES LTD V. PETROPLAST INDUSTRIES LTD(2000) LPELR 6868(CA).
I am of the considered view that it has been sufficiently demonstrated from all that has been said hereinbefore, that the Appellants were denied the opportunity to file their reply to the written address of the Respondent given the fact that they have shown that they were not aware of the proceedings whereat the Respondent regularised the position of his written address before the lower Court on 27/6/2011, as well as the order the said Court made regularising the said written address; which I am of the considered view that the lower Court being aware of the absence of the Appellants

before it on the said date, ought to have ordered that the said Appellants served with. Having not done either of this or both, it is simply incongruous for the lower Court at any time thereafter to have found the Appellants to have had sufficient time to file their reply if they so wished. I dont consider it to be in parity with reasoning for a Court that never satisfied itself from its records that a party to be affected by an order was served hearing notice in respect of the proceedings whereat the order was made, and/or the order it made, to compute time for the doing of whatever the said order is about, against the affected party. True it is that it is the reply on point of law that the Appellants were denied the opportunity of filing, I however dont think this derogates from a denial of the right of the Appellants to address the Court (a settled case of breach of fair hearing) as the adoption of the Appellants written address without their being giving the opportunity to adopt their reply cannot be said to be the adoption of their address properly so called. This is in the light of the provisions of Order 16 Rules 8 and 9 of the

Rules of Procedure of the lower Court which shows that an address before it consists of address and reply where one is filed; and which was not filed in the instant case because the Appellants had no notice that the lower Court at the instance of the Respondent had allowed the Respondent to regularise and adopt his written address prior the delivery of the judgment on appeal. And in this regard, I have closed my eyes to the stance of the Appellants that it was in the judgment of the lower Court that the said address was adopted and that the content of the additional record were concocted, as it were. Indeed, I cannot but say that the decision of the Supreme Court in the case of ZENITH PLASTICS INDUSTRIES LTD V. SAMOTECH LTD (2018) LPELR 44056 (SC) wherein the decision of this Court was declared null and void on the ground that the reply brief filed in the appeal before this Court, was inadvertently not referred to as the Court did not know that a reply brief was filed, in my considered view is more than sufficient to fault to its very foundation the instant case wherein the Appellants reply brief was not considered at all by the lower Court as

the manner in which it conducted its proceedings after the case was returned to the cause list on 27/6/2011, deprived the Appellants the opportunity of filing their reply.
Flowing from all that has been said is that issues 1-3 formulated by the Appellants must be and are resolved in their favour. Furthermore, having regard to the authorities Appellants issues 4 and 5 would appear not to require any consideration by this Court insofar as the issues call for the determination of the correctness of the findings made by the lower Court. This is because the decisions regarding the breach of fair hearing where established, as it has been done in the instant case, go to show that the correctness or otherwise of the decisions in a case in which the breach of fair hearing has been established, is literally a waste of time as the judgment in which the decisions have been made being a nullity, must be set aside.

In the final analysis, the appeal is meritorious and it succeeds given the resolution of Appellants issues 1-3 in their favour. Consequently, the proceedings and judgment in the case being nullities are hereby set aside. The case file is

to be remitted to the Chief Judge of Abia State for assignment to another Judge of that Court for the case to be tried de novo.

I make no order as to costs because the breach of the Appellants right to fair hearing particularly on the ground of the non-service of hearing notice as in this case, was occasioned by the act of commission or omission by the lower Court. This is so notwithstanding that the lower Court allowed itself to be railroaded by the Respondent into committing the breach of the Appellants right to fair hearing.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

ITA GEORGE MBABA, J.C.A.: I agree.

Appearances:

D.O. UruakpaFor Appellant(s)

L.I. NwaogwugwuFor Respondent(s)

Appearances

D.O. UruakpaFor Appellant

AND

L.I. NwaogwugwuFor Respondent

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