ACCESS BANK PLC v. YERIMA KIDA MEMORIAL COMPANY LIMITED & ANOR (2019)

ACCESS BANK PLC v. YERIMA KIDA MEMORIAL COMPANY LIMITED & ANOR

(2019)LCN/13621(CA)

In The Court of Appeal of Nigeria

On Thursday, the 4th day of July, 2019

CA/J/41/2017

RATIO

APPEAL: PROCEDURE WHEN AN APPELLANT WANTS TO APPEAL AGAINST AN INTERLOCUTORY ORDER AND FINAL JUDGMENT OF A COURT

An Appellant who wishes to appeal against both an interlocutory order or decision of the trial Court and its final Judgment has the option of either to file separate notices of appeal in respect of each or file one notice of appeal containing grounds relating to either of the appeals provided that they are filed within time limited by law for their filing. See Chime v Onyia (2009)2 NWLR (Pt.1124)1 at 36-37 paras G-D and Onwubuariri v Igboasoiyi (2011)3 NWLR (Pt.1234) 357 SC at 378 paras G-H. PER ADZIRA GANA MSHELIA, J.C.A.

WHETHER A PARTY MUST ADDRESS THE COURT

A party is not compellable to address the Court but when the right exists a party must not be denied that right. The apex Court in Obodo v Olomu (1987)1 NWLR (Pt. 59) 111 @ 121 per Belgore JSC had this to say:
Addresses form part of the case and failure to hear the address of one party, however, overwhelming the evidence seems to be on one side, vitiates the trial because in many cases, it is after the addresses that one finds the law on the issues, fought not in favour of the evidence adduced. PER ADZIRA GANA MSHELIA, J.C.A.
RIGHT TO ADDRESS THE COURT IS CONSTITUTIONAL IN NATURE
It is also settled that a right of address is constitutional which cannot be taken away from a party by any Court or Tribunal. See Agbogu v Adiche (2003)2 NWLR (Pt.805) 509 at 527. The provisions of Section 294(1) of the 1999 Constitution also vests a right in the parties to make final addresses. In other words, the hearing of addresses by every Court established by the Constitution of the Federal Republic of Nigeria is recognized by the Constitution. Similarly, the rule of audi alteram partem which is one of the ingredients of fair hearing postulates that the Court should hear both sides not only in the case but also in all material issues in a case before reaching a decision which may be prejudicial to any party in the case. It is also embodied in the rule that justice must not only be done but must manifestly and undoubtedly be seen to be done in the determination of any case by the Court. PER ADZIRA GANA MSHELIA, J.C.A.

FAIR HEARING: IT IS LINKED WITH THE PRINCIPLES NATURAL JUSTICE AND EFFECT OF NON COMPLIANCE
Fair hearing incorporates a trial done in accordance with rules of natural justice which in the broad sense, is that which is done in circumstances which are fair, just equitable and impartial. See FRN v Akubueze (2010)17 NWLR (Pt.1223) 525. It cannot be said that Appellant had a fair trial. Appellants counsel was not given the opportunity, to address the Court let alone to abuse it. See Ndu v State (1990)7 NWLR (Pt.164) 550. The breach of right to fair hearing in any trial or inquiry nullifies the trial, and any action taken is a nullity. PER ADZIRA GANA MSHELIA, J.C.A.

COURT: A COURT MUST CONSIDER ALL ISSUES BROUGHT BEFORE IT

I have earlier indicated that the appeal will be determined on the issues raised by the Appellant in his Brief of Argument. This Court being a penultimate Court is enjoined to pronounce on all issues put across by the parties. However, there are circumstances when this Court can dispense with doing so. The exceptions are:
1) When an order for retrial is desirable or necessary; and
2) Where the Judgment appealed against is considered a nullity in which case there will be no need to pronounce on all issues which could possibly arise at the retrial or in fresh action as the case may be.

JUSTICES

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

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

BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria

Between

ACCESS BANK PLC – Appellant(s)

AND

1. YERIMA KIDA MEMORIAL COMPANY LTD
2. ALH. DAUDA YERIMA KIDA – Respondent(s)

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Yobe State High Court presided over by Hon. Justice A. Garba, delivered on 20th December, 2016, wherein Judgment was entered in favour of the plaintiffs and against the defendant.

The brief facts are that: plaintiffs took out a writ of summons dated the 4th day of January 2012 and a Statement of Claim filed on 20th April, 2011 at the Yobe State High Court of Justice claiming the following reliefs against the defendant thus:
a) A declaration that the plaintiffs are not in any way indebted to the Defendant.
b) A Declaration that the plaintiffs cannot be made to pay any debt which was not guaranteed or sureteed by them.
c) A Declaration that the offer letter dated 28th May, 2009 addressed to the plaintiffs by the defendant and purportedly accepted by the plaintiffs is wrongful and illegal as the plaintiffs never took loan from the defendant to be restructured.
d) A Declaration that the offer letter dated 28th May, 2009 addressed to the plaintiffs by the defendant is not enforceable for failure to fulfill the

condition precedent to its enforceability.
e) An Order of injunction compelling the defendant to return to the plaintiffs all the title documents in the letter dated 28th May, 2009.
f) An Order of injunction compelling the Defendant to return to the plaintiffs all the titled documents in the letter dated 28th May, 2009.
g) An Order of injunction restraining the Defendant from disturbing the plaintiffs on account of the said wrongful and illegal transaction.
h) The cost of the suit.

Parties exchanged pleadings. Both parties thereafter amended their pleadings. After several adjournments plaintiff called one witness, tendered one Exhibit and the Court closed the case for the defence because they failed to appear in Court on the adjourned date. Plaintiffs counsel addressed the Court. Thereafter the trial Court entered Judgment in favour of the plaintiffs.

Dissatisfied with the Judgment, Appellant lodged an appeal to this Court; vide his Notice of Appeal filed on 29/12/2016 containing three (3) grounds of appeal. With the leave of Court sought and obtained Appellant Amended its Notice of Appeal which was filed on 05/04/2017 but

deemed properly filed and served on 06/04/2017. The Amended Notice of Appeal contained seven grounds of appeal.

In compliance with the rules of Court parties exchanged their respective briefs of argument. Appellants Brief of Argument settled by Solomon E. Umoh (SAN) and E.B Ede Esq., was dated 4th day of April, 2017 and filed 5th day of April, 2017 but deemed properly filed and served on 6th day of April 2017. While the Respondents Brief of Argument settled by John S. Mshelia Esq., was dated 16th day of January, 2019 and filed 6th February 2019 but deemed properly filed on 4th day of March 2019. The Appellant filed a Reply Brief on 08/04/2019 but deemed properly filed on 10/04/2019. When the appeal came up for hearing both counsel adopted their respective Briefs of Argument. Appellants counsel urged the Court to allow the appeal. While Respondents counsel urged the Court to dismiss the appeal.

In the Appellants Brief of Argument the following issues were distilled for determination as follows:
1. Whether the failure to accord the Defendant/Appellant an opportunity to address the Court constitutes a denial of

fair hearing (distilled from Ground One).
2. Whether the Plaintiffs/Respondents had discharged the initial burden of proof placed on him to show that the Defendant/Appellant did not advance them the sum of N126,500,000.00, the subject matter of this suit (distillable from Grounds Two and Four).
3. Whether from the state of pleadings the proper parties were before the Court so as to invest the Court with the jurisdiction to entertain the matter. (Distilled from Ground Three).
4. Whether the learned trial Judge was right in his evaluation of evidence when he found and held that the Plaintiffs/Respondents had proved their case so as to entitle them to Judgment (distillable from Grounds Five and Seven).
5. Assuming though not conceding that the plaintiffs had proved their case before the lower Court, whether the damages of N15 Million Naira awarded to the plaintiffs is not perverse, unreasonable, arbitrary, excessive and exorbitant having regards to the facts and circumstances of this case. (Distilled from Ground Six).

Respondents on the other hand formulated three issues for determination as follows:
1) Whether the lower Court

afforded the Appellant fair hearing before arriving at the decision complained of (Ground 1).
2) Whether proper parties were before the lower Court (Ground 3).
3) Whether there was basis for the learned trial Judge to arrive at the decision he arrived at in granting the reliefs sought and the damages he awarded to the Respondents. (Ground 2, 4, 5, 6 and 7).

I have examined the issues formulated by the Appellant as well as the Respondents. I will adopt the issues formulated by the Appellant. The issues formulated by Respondents are similar as such they will be considered along with that of the Appellant.

ISSUE 1
In arguing issue one, learned senior counsel for the Appellant submitted that the answer to the poser raised under this issue is in the affirmative. Counsel submitted that it is opposite to set down the facts that led to the unfortunate legal scenario in this issue placed before this Honourable Court for determination as facts are the fountain head of the law as enunciated by the Supreme Court in the case of A.G Abia State v A.G Federation (2006)16 NWLR (Pt.1005) 265 SC @ 361 paras A-C. Counsel narrated the brief facts leading to

this appeal. See pages 4-5 of the Appellants Brief of Argument. Learned senior counsel submitted that it is trite in law that hearing a matter in Court cannot be said to be fair if any of the parties appearing before the Court is refused a hearing or is denied the opportunity to be heard or present his case or call evidence. That it is also settled law that the right of counsel to address the Court after evidence has been adduced is now axiomatic in law as same is constitutional. That it must be accorded its rightful place by the Court as it is a fundamental requirement of a fair and a major yardstick to gauge whether a party has been afforded reasonable opportunity to present his case before a Court of law in Nigeria. Reliance placed on Eshenake v Gbinije (2006) 1 NWLR (Pt.961) 228 @ 250 paras G. See also Obodo v Olomu (1987) 3 NWLR (Pt.59) 111 @ 121. Counsel further submitted that the law is well settled that addresses form part of the cases of the parties and failure to give opportunity for address to any of the party before the Court amounts to denial of fair hearing to such a party, and it automatically vitiates the whole trial. Reliance placed on

Obodo v Olomu (supra) and Eshenake v Gbinije (supra).

Learned senior counsel further submitted that the trial Judge in the instant case closed the case of the Defendant/Appellant and ordered the Plaintiffs/Respondents to address the Court on 15th of December, 2016 and on the same day heard the address of the Plaintiffs and thereafter adjourned the matter for Judgment without giving the Defendant/Appellant opportunity to address the Court after calling on the Plaintiffs/Respondents to address it on the issues presented before the Court by the parties. That it is well settled in law that a Judge has a right to exercise of discretion in his judicial functions but he must exercise this right of discretion judicially and judiciously and not capriciously. Reference made to Adigwe v FRN (2015)18 NWLR (Pt.1490) 105 SC at 133-134 paras F-A. See also J.P v INEC (2004)12 NWLR (Pt.886) 140 CA at 161 paras B-C. and Tanko v State (2009)4 NWLR (Pt.1131) 430 SC at 457.

Counsel further submitted that the learned trial Judge did not exercise his discretion judicially and judiciously as it was out of judicial character for the plaintiffs to be afforded opportunity to

address the Court without a similar opportunity given to the defendant. See Offor v State (2012)18 NWLR (Pt.1333) 421 @ 440 paras G-H. That the attitude of the learned trial Judge essentially slaughtered justice on the alter of speed. See Abubakar v Yar’adua (2008)4 NWLR (Pt.108) 465 SC at 563 paras B-D. It is trite law that the principle of fair hearing is fundamental to all Court procedure and proceedings and like jurisdiction the absence of it vitiated proceedings however well conducted. SeeA.G Rivers State v Ude (2006) 17 NWLR (Pt.1008) 43650 at 456 paras C-E. See also F.G.N v Zebra Energy Ltd (2002)18 NWLR (Pt.798) 162 SC at 229-230 paras E-H. According to counsel the Appellant was denied the right to address the Court before the delivery of the Judgment by the trial Court and this, it is most respectfully submitted is purely a denial of fair hearing. Reference made to Ayisa v Akanji (1995)7 NWLR (Pt.406) 129 SC @ 145 paras D and Chime v Onyia (2009)2 NWLR (Pt.1124)1 at 77 paras A-E. Counsel urged the Court to set aside the Judgment in its entirety. Counsel similarly urged the Court to resolve issue one in favour of the Appellant.

In response,

learned counsel for the Respondents raised a Preliminary point of law that Ground 1 of the Amended Notice of Appeal, from which this issue is formulated as well as the issue No. 1 formulated by the Appellant in his Brief is not a competent Ground of Appeal as it does not relate to the decision appealed against. Counsel submitted that Appellant had already ventilated his grievances on the same facts and particulars covered by the said Ground 1 of the Amended Notice of Appeal in an interlocutory application dated and filed on 19th December 2016 before the Court. That the lower Court heard the parties arguments in respect of the same facts and particulars now canvassed in the said Ground 1, and duly delivered a separate and appealable decision. See pages 55-58 of the record. That having so specifically filed and argued an interlocutory application to set aside the proceedings of 15th December, 2016, on the grounds of breach of fair hearing and on the same factual grounds as contained in the said ground 1 and for which interlocutory application the lower Court duly delivered a decision, thus the issues canvassed in the said Ground 1 now fall within the

realm of that interlocutory decision. According to counsel the remedy available to the Appellant is to appeal against that interlocutory decision as an interlocutory appeal, or seek leave of Court to file and argue an appeal against an interlocutory decision along with the appeal against the final decision. Learned counsel conceded that the right to address the Court is an inalienable right of a party and breach of this right may amount to denial of fair hearing to a party. Counsel submitted that. It is also trite and settled principle of law that where a party is given an opportunity to address the Court but fails to do so, he cannot turn round and complain of breach of his right to fair hearing. See Kaduna Textiles v Umar (1994)1 NWLR (pt.319) 143 @ 159. That Appellant was afforded opportunity to participate in the proceedings leading up to the Judgment including addressing the Court, but Appellant decided not to participate in the proceedings. That as early as 10th March 2016, the Appellant was aware and in agreement that by 26th-21st April 2016, the Respondents would open and close their case, and Appellant would at least open its case. Counsel further

submitted that as at 23rd November, 2016, the learned trial Judge had put the Appellant on notice that the business of the Court on 14th and 15th December, 2016 would be a definite hearing; which apart from cross-examination of PW1, opening and closing its Defence, would also include the possibility of addressing the Court. That Appellant had ample notice that parties could possibly address the Court on 14th and 15th December 2016. That Appellant was represented in Court on 14th December, 2016 and applied for adjournment to 15th December, 2016, which was granted but deliberately elected to stay away from the Court on 15th December, 2016 when the Respondent addressed the Court and Judgment reserved. That Appellant was afforded opportunity to participate in proceedings of the trial Court but Appellant elected to excuse himself from the proceedings, thus he cannot complain that his right to fair hearing has been breached. He urged the Court to hold that Appellant was afforded fair hearing in the proceedings leading up to the Judgment appealed against and resolve this issue in favour of the Respondent.

Before I determine this issue, I have to first resolve the

point of law raised by Respondents counsel regarding ground one of the Amended Notice of Appeal. I have examined ground one of the Amended Notice of Appeal. I find nothing wrong with the said ground of appeal. An Appellant who wishes to appeal against both an interlocutory order or decision of the trial Court and its final Judgment has the option of either to file separate notices of appeal in respect of each or file one notice of appeal containing grounds relating to either of the appeals provided that they are filed within time limited by law for their filing. See Chime v Onyia (2009)2 NWLR (Pt.1124)1 at 36-37 paras G-D and Onwubuariri v Igboasoiyi (2011)3 NWLR (Pt.1234) 357 SC at 378 paras G-H. In the instance appeal, the Appellant vide Notice of Appeal filed on 29/12/2016 and the Amended Notice of Appeal of 05/04/2017 is complaining of the whole decision of the High Court of Justice of Yobe state delivered on 20th December, 2016, that is, the Ruling and Judgment of that Court rendered on the same day being 20th December, 2016. It is clear from the relevant grounds contained in the said notice of Appeal that the Appellant complaint of the

Courts decision in the said Ruling and the Judgment handed down at the same time on 20th December 2016. I therefore find and hold that the failure of the Appellant to file separate Notice of Appeal for the interlocutory appeal is of no moment. An appellant can appeal against an interlocutory decision of a lower Court in an appeal against the final decision of the Court, as in the instant case. Ground one is therefore a competent ground of appeal.

Now as regards the main issue appellants grouse is that he was not given the opportunity to address the Court which according to him is a breach of his fundamental right to also address the Court. The brief facts relating to this appeal are as follows:
On 10/05/2016, learned counsel for the defendant now appellant was in Court and applied for PW1 to be recalled for cross-examination. The application was granted and the matter was adjourned to 21st and 22nd day of June, 2016. The matter could not proceed on the next adjourned date, and same was further adjourned to 14^th, 15th December, 2016 to enable counsel for the defence to cross-examine PW1, and possibly open and close their case. On

14/12/2016, a counsel appeared and held the brief of Mr. O. Akintola counsel to the defendant, and applied for an adjournment to 15/12/2016. On 15/12/2016, the defence counsel sent in letter seeking for an adjournment. In spite of the letter, the Court was of the view that defendant was not ready to defend the case, so the defence case was closed and asked the counsel for the plaintiffs to address the Court immediately and the learned counsel for the plaintiffs addressed the Court. The matter was adjourned for Judgment against 19/12/2016.

On 19/12/2016. Defendant/Applicant filed a motion on notice asking the Court to set aside whole proceedings in this Suit on the 15th December, 2016 and the orders made therein same having been made in breach of the applicants fundamental right to fair hearing and without jurisdiction. The application was heard by the Court and ruling delivered on 20/12/2016 refusing the application. On same 20/12/2016, the Court delivered its Judgment in favour of the Plaintiffs/Respondents, hence this appeal.

It is clear from the record that when the Court closed the defence case, plaintiffs counsel was allowed to

address the Court immediately. After the address the matter was adjourned for Judgment. The trial Court did not give the defendant opportunity to address the Court. Despite their absence the trial Court ought to have adjourned the matter to another date to allow the defence to reply to the plaintiffs address and present its own address. The trial Court unfortunately was in a hurry to deliver its Judgment. Would this conduct on the part of the trial Court be reasonably described as a judicial exercise of discretion. I agree with the submission of Appellants counsel that the imaginary scale of justice ought to be very balanced as between the contending parties. The defendant ought to have been given opportunity to address the Court, having allowed the plaintiffs to present their address.
Address of counsel is an integral part of the hearing of a case. A party is not compellable to address the Court but when the right exists a party must not be denied that right. The apex Court in Obodo v Olomu (1987)1 NWLR (Pt. 59) 111 @ 121 per Belgore JSC had this to say:
Addresses form part of the case and failure to hear the address of one party,

however, overwhelming the evidence seems to be on one side, vitiates the trial because in many cases, it is after the addresses that one finds the law on the issues, fought not in favour of the evidence adduced.
In another related case of Salami v Odogun (1991)2 NWLR (Pt.173) 291 at 301, the Court of Appeal per Sulu Gambari JCA opined thus:
Where an address sought to be given and the same was not accorded, any decision so arrived at will amount to a breach of fair hearing which is entrenched in Section 33 of the 1979 Constitution of the Federal Republic of Nigeria and will surely vitiate the proceedings.
It is also settled that a right of address is constitutional which cannot be taken away from a party by any Court or Tribunal. See Agbogu v Adiche (2003)2 NWLR (Pt.805) 509 at 527. The provisions of Section 294(1) of the 1999 Constitution also vests a right in the parties to make final addresses. In other words, the hearing of addresses by every Court established by the Constitution of the Federal Republic of Nigeria is recognized by the Constitution. Similarly, the rule of audi alteram partem which is one of the ingredients

of fair hearing postulates that the Court should hear both sides not only in the case but also in all material issues in a case before reaching a decision which may be prejudicial to any party in the case. It is also embodied in the rule that justice must not only be done but must manifestly and undoubtedly be seen to be done in the determination of any case by the Court.
In this case the complaint of the Appellant is not just merely because he lost in the action but that he was not just prevented but had also been precluded from presenting all his case before the learned trial Judge in accordance with the rules of procedure. See Alhaji Ahmadu v Alhaji Salawu (1974) 11 SC 43 at 49. The Supreme Court in Obodu v Olomu (supra) observed that the beneficial effect and impact of address on the mind of the Judge is enormous and 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 an address after conclusion of evidence. In the

light of what transpired at the trial Court, the failure to hear the address of defence counsel, cannot be said that it has not occasioned miscarriage of justice. Miscarriage of justice vitiates Judgment and renders it nullity.
The right to fair hearing is a fundamental constitutional right of every citizen as rightly argued by the learned silk for the Appellant. The right is guaranteed by Section 294(1) of the 1999 Constitution (as amended) which is applicable to this case. There is no doubt that the failure of the trial Court to give defence opportunity to address the Court has breached its constitutional right to fair hearing. Fair hearing incorporates a trial done in accordance with rules of natural justice which in the broad sense, is that which is done in circumstances which are fair, just equitable and impartial. See FRN v Akubueze (2010)17 NWLR (Pt.1223) 525. It cannot be said that Appellant had a fair trial. Appellants counsel was not given the opportunity, to address the Court let alone to abuse it. See Ndu v State (1990)7 NWLR (Pt.164) 550. The breach of right to fair hearing in any trial or inquiry nullifies the trial, and any action

taken is a nullity. See Ntukidem v Oko (1986)5 NWLR (Pt.45) 90, U.N.T.T.H.M.B v Nnoli (1994)8 NWLR (1994)8 NWLR (Pt.363) 376. In the instant case, the failure of the trial Court not to allow the defence to address the Court occasioned a miscarriage of justice which vitiated the Judgment and rendered it a nullity. See Irolo v Uka (2002) 14 NWLR (Pt.786) 195 at 238, page 253 paras C-D, A.G Rivers State v Ude (2006)17 NWLR (Pt.1008) 436 at 456 paras C-E, Chime v Onyia (2009)2 NWLR (Pt.1124)1 at 77 paras A-E. I will accordingly resolve issue one in favour of the Appellant.

See Brawal Shipping (Nig.) Ltd v Onwudiki (2000) FWLR (Pt.23) 1254 at 1271, (2000)4 NWLR (Pt.676) 387, Sanusi v Ameogun (1992)4 NWLR (Pt.237) 529 at at 550-551; Shasi v Smith (2009)18 NWLR (Pt.1173) 330 and C.K & W.M.C Ltd v Akingbade (2016) 14 NWLR (pt.1533) 487 @ 510-511 paras F-B.

In view of the finding above, it will be wrong to consider the other issues raised in the case as trial had been declared a nullity. Expressing an opinion on the other issues in this appeal is also wrong as the matter will be remitted back for trial denovo.

In sum, this appeal succeeds in part and it is hereby allowed. Appeal allowed in part. The Judgment of Yobe State High Court sitting at Damaturu delivered on 20th December, 2016 by Ali Garba J. in suit No. YBS/DT/HC/12/2011 is hereby set aside. In its place an order is hereby made remitting the case to Hon. Chief Judge Yobe State for re-assignment to another Judge for hearing and determination afresh. Parties to bear their own costs.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Adzira Gana

Mshclia, JCA. His Lordship has ably considered and resolved the issues in contention in the appeal. I agree with the reasoning and abide by the conclusion reached therein as well as all the consequential orders contained in the lead judgment.

BOLOUKUROMO MOSES UGO, J.C.A.: I am in agreement with the reasoning and conclusion of my learned brother ADZIRA GANA J.C.A (PJ). I also allow the appeal, set aside the judgment of the lower Court and order a retrial of the case by another Judge of the High Court of Yobe State.

Appearances:

Solomon Umoh, SAN with him, E.B Ede, Esq., Yetunde Nze, Esq., F.J Kumsat, Esq. and N.M Nyelong, Esq. For Appellant(s)

T.A. Lenkat holding Brief of J.S. Mshelia, Esq. For Respondent(s)

Appearances

Solomon Umoh, SAN with him, E.B Ede, Esq., Yetunde Nze, Esq., F.J Kumsat, Esq. and N.M Nyelong, Esq. For Appellant

AND

T.A. Lenkat holding Brief of J.S. Mshelia, Esq. For Respondent