BLESSING AKPAN & ORS v. TOMMY GODWIN (2019)

BLESSING AKPAN & ORS v. TOMMY GODWIN

(2019)LCN/13693(CA)

In The Court of Appeal of Nigeria

On Thursday, the 25th day of July, 2019

CA/C/312/2016

RATIO

JURISDICTION: IMPORTANCE

The law mandates the Courts to accord prime attention to issue of jurisdiction first where it germinates from any proceedings, see Oku v. Umeh (2016) 4 NWLR (Pt. 1501) 120; Brittania-U (Nig) Ltd. v. Seplat Pet. Dev. Co. Ltd. (2016) 4 NWLR (P. 1503) 541; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Ngere v. Okuruket (2017) 5 NWLR (Pt. 1559) 440. I will pay total obedience to this legal commandment so as not to insult the law. The issue, though a nagging one, is canalised within a narrow compass. PER OBANDE FESTUS OGBUINYA, J.C.A.

COURTS AND PARTIES ARE BOUND BY RECORD OF PROCEEDINGS

An appellate Court is bound by the contents of the record. It is derobed of the jurisdiction to read into what is absent from it nor add into it what is outside the record. In other words, it must construe the record in its exact content. The parties are bound by the record too, see Orugbo v. Una (2002) 16 NWLR (Pt. 792) 175; Ogidi v. State (2005) 5 NWLR (Pt. 918) 286; O. O. M. F. v. N. A. C. B. Ltd. (2008) 12 NWLR (Pt. 1098) 412; Ekpemupolo v. Edremoda (2009) 8 NWLR (Pt. 1142) 166; International Bank Plc. v. Onwuka (2009) 8 NWLR (Pt. 1144) 462; Sapo v. Sunmonu (2010) 11 NWLR (Pt. 1205) 374; Akanbi v. Oyewale (2009) ALL FWLR (Pt. 456) 1922; Offor v. State (2012) 18 NWLR (Pt. 1333) 421; Adegbuyi v. APC (2015) 2 NWLR (Pt. 1442)1; Brittania-U (Nig.) Ltd. v. Seplat Pet Dev. Co. Ltd. (2016) 4 NWLR (Pt. 1503) 541; PDP v. Umana (No.2) (2016) 12 NWLR (Pt. 1526) 307. PER OBANDE FESTUS OGBUINYA, J.C.A.

FAIR HEARING: DEFINITION

Fair hearing connotes a trial which is conducted in accordance with all the legal rules formulated to ensure that justice is done/dished out to parties to the cause, seeEze v. FRN (2017) 15 NWLR (Pt. 1589) 433; Ardo v. INEC (2017) 13 NWLR (Pt. 1583 450; Regt. Trustees, P.C.N. v. Etim (2017) 13 NWLR (Pt. 1581) 1; Akingbola v. FRN (2018) 14 NWLR (Pt. 1640) 395. Due to its olympian status in the appeal, it is germane to display some of the notable features of fair hearing ? a mantra which, nowadays, competes with jurisdiction for prominence in adjudications. PER OBANDE FESTUS OGBUINYA, J.C.A.

FAIR HEARING : WHAT IT ENTAILS

The ancient concept of fair hearing traces its paternity to divinity. It was a common law doctrine which has metamorphosed into the corpus of our jurisprudence and, firmly, entrenched in Section 36(1) of the Constitution, as amended. It donates to the citizens the inviolable right to ventilate their grievances on the altar of the two concrete pillars of natural justice to wit: audi alteram partem ? hear the other side and nemo judex in causa sua ? no one should be a judge in his own case. The whole essence of fair hearing, which is coterminous with fair trial, connotes giving parties to any proceedings, be it judicial or administrative, an equal opportunity to present their cases. It follows, that fair hearing is, totally, divorced from correctness of a decision. It centres on the cardinal principle that a fair-minded person who watched the proceedings, before a Court or administrative or quasi judicial body, should conclude that it exhibited even handedness/fairness in apportioning justice to the feuding parties, see O.O.M.F. Ltd v. NACB (2008) 12 NWLR (Pt. 1098) 412; Nwanegbo v. Olawole (2011) 37 WRN 101; Kim v. State (1992) 4 NWLR (Pt. 233) 17; Newswatch Comm. Ltd. v. Atta (2006) 12 NWLR (Pt. 993) 144; FRN v. Akabueze (2010) 17 NWLR (Pt. 1223) 525; S & D Const. Co. Ltd. v. Ayoku (2011) 13 NWLR (Pt. 1265) 487; Ovunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522; Nigeria Navy v. Labinjo (2012) 17 NWLR (Pt. 1328) 56; J.S.C., Cross River State v. Young (2013) 11 NWLR (Pt. 1364) 1; Mpama v. FBN Plc (2013) 5 NWLR (Pt. 1346) 176; Abah V. Monday (2015) 14 NWLR (Pt. 1480) 569; Gov., Zamfara State v. Gyalange (2013) 8 NWLR (Pt. 1357) 462; Achuzia v. Ogbomah (2016) 11 NWLR (Pt. 1522) 59; Danladi v. Dangiri (2015) 2 NWLR (Pt. 1442) 124; Labour Party v. Bello (2017) 2 NWLR (Pt. 1548) 148; Darma v. Ecobank (Nig.) Ltd. (2017) 9 NWLR (Pt. 1571) 480. PER OBANDE FESTUS OGBUINYA, J.C.A.

FAIR HAERING: PARAMETERS SET BY COURTS TO ENSURE THAT FAIR HEARING IS OBSERVED
The apex Court, in Baba v. Civil Aviation (1991) 7 SCNJ (Pt. 1) 1 at 24/(1991) 5 NWLR (Pt. 192) 388 at 423, per Nnaemeka-Agu, JSC, evolved the parameters to guide the Court to ensure fair hearing to include the right of the person to be affected:
(i) to be present all through the proceedings and hear all the evidence against him;
(ii) to cross-examine or otherwise confront or contradict all the witnesses that testify against him;
(iii) to have read before him all the documents tendered in evidence at the hearing;
(iv) to have disclosed to him the nature of all relevant material evidence, including documentary and real evidence, prejudicial to the party, save in recognised exceptions;
(v) to know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence; and
(vi) to give evidence by himself, call witnesses if he likes, and make oral submissions either personally or through a counsel of his choice.
See also, JSC, Cross River State v. Young (2013) 11 NWLR (Pt. 1364) 1; Eze v. FRN (supra). PER OBANDE FESTUS OGBUINYA, J.C.A.

FINAL ADDRESS: DEFINITION
It is the last address before the delivery of judgment,? see Ijebu-Ode L.G. v. Adedeji Balogun & Co. (1991) 1 NWLR (Pt. 166) 136 at 156, per Karibi-Whyte, JSC., Sodipo v. Lemminkainen Oy (1985) 2 NWLR (Pt. 8) 547; Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt. 58) 539; Kalu v. State (2017) 14 NWLR (Pt. 1586) 522. PER OBANDE FESTUS OGBUINYA, J.C.A.

FINAL ADDRESS: IMPORTANCE
Therein, Akpata, JSC, succinctly, stated:
It is generally accepted that the hearing of addresses from counsel before delivery of judgment is an important exercise in judicial proceedings in our Courts. The entire proceedings may be declared a nullity if a counsel is denied the right to address the Court at the close of evidence.
See also, Obodo v. Olomu (1987) 3 NWLR (Pt. 59) 111/(1987) 2 NSCC, vol.18, 824 at 831; Niger Construction Co. Ltd. v. Okugbeni (1987) 11/12 SCNJ 113/(1987) 4 NWLR (Pt. 67) 787; Ayisa v. Akanji (1995) 7 NWLR (Pt. 406) 129; Kalu v. State (supra).PER OBANDE FESTUS OGBUINYA, J.C.A.

JUSTICES

OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria

Between

1. BLESSING AKPAN
2. FIRST CITY MONUMENT BANK PLC, UYO
3. BONIFACE OF SARS DEPARTMENT IKOT AKPAN ABIA, UYO
4. THE COMMISSIONER OF POLICE, AKWA IBOM STATE Appellant(s)

AND

TOMMY GODWIN Respondent(s)

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal is an offspring of the decision of the High Court of Akwa Ibom State, holden at Abak (hereinafter addressed as ?the lower Court?), coram judice: Iniabasi T. U. Udobong, J., in Suit No. HA/FHR/21/2015, delivered on 4th May, 2016. Before the lower Court, the appellants and the respondent were the respondents and the applicant respectively.

?The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity. In May, 2012, the respondent obtained a loan of N4m, to facilitate his printing business, from the second appellant bank on the recommendation of the first appellant: a staff of the second appellant. The respondent alleged that three weeks after securing the loan facility, he was robbed in his office and he was unable to lodge a complaint of the robbery because an officer, working at the Police Area Command, Uyo, demanded N10,000.00 which he could not afford to give him. While he had the intention to repay the loan, the police, acting on the instigations of the first appellant, arrested, handcuffed and

detained him from 14th ? 19th October, 2015 without order of Court. The Police demanded and continued to demand for title documents of his landed property failing which they would further arrest him. Sequel to these, the respondent, beseeched the lower Court, via an application, filed on 23rd October, 2015, under the fundamental right procedure and tabled against the appellants the following reliefs:
1. A declaration that the arrest of Applicant by 3rd respondent with handcuff following the directive of 4th Respondent upon the instigation of 1st respondent and subsequent detention of Applicant at Ikot Akpan Abia Police Cell (SARS) from 14 October, 2015 to 19th October, 2015 without an order of Court constitute as infringement of the applicant?s Fundamental Right guaranteed and protected by Section 35(1) (4) and (5) and 34(1) a of the Constitution of Federal Republic of Nigeria 1999 as amended.
2. A declaration that further treat to re-arrest the applicant indefinitely if the applicant does not produced his landed property title document to the 3rd & 4th Respondents for 1st Respondent to use the document and sell the applicant?s

landed property is unconstitutional null and void.
3. The sum of One Hundred Million Naira (N100,000,000.00) against the Respondents jointly and or severally on the footing of exemplary damages for the breed (sic) of my Rights.
4. A mandatory order commanding the Respondents jointly and or severally to deliver an apology in writing to the Applicant for the unwarranted infringement of this (sic) Fundamental Rights.
5. An order of perpetual Injunction restraining the Respondents from taking further steps until the determination of this application.

In reaction, the appellants joined issue with the respondent and denied liability. They asserted, in their counter-affidavit, that the respondent was arrested based on the threat to life he issued to the first appellant on demand for the repayment of the loan facility.

Following the rival claims, the lower Court heard the application. In a considered judgment, delivered on 4th May, 2016, found at pages 200 ? 213 of the printed record, the lower Court granted the respondent?s claims in part.
?
The appellants, Blessing Akpan and First City Monument Bank Plc, were dissatisfied with

the decision. Hence, on 9th May, 2016, the appellants lodged a 4-ground notice of appeal, copied at pages 214-216 of the record, wherein they prayed this Court for ?AN ORDER setting aside the judgment of the trial High Court in this suit.? They, also, filed three additional grounds of appeal on 20th September, 2019. Thereafter, the parties filed and exchanged their respective briefs of argument in line with the procedure governing the hearing of civil appeals in this Court. The appeal was heard on 13th May, 2019.

During its hearing, learned counsel for the respondent, Ernest Usah, Esq., adopted the respondent?s brief of argument, filed on 14th July, 2017, as representing his arguments against the appeal. He urged the Court to dismiss it. On the last date of adjournment, 6th March, 2019, the appellants were represented by counsel who did not appear on the hearing date. The appellants? brief of argument, settled by Uwem Ibiok, Esq., was filed on 7th December, 2016. The Court treated the appeal as having been, duly, argued pursuant to the provision of Order 19 Rule 9(4) of the Court of Appeal Rules, 2016.

In the appellants? brief of argument, learned counsel distilled four issues for determination to wit:
3.01. Whether the learned judge was right in striking out the Appellants? Written Reply filed on the 7th day of December, 2015 for having been filed out of time when the Court had ordered on the 2nd day December, 2016 that same be filed within five days thereafter the order was made.
3.02. Whether the learned judge erred in law in striking out the Appellants? Counter Affidavit filed on the 2/2/2016 when the Court ordered on the 26/01/2016 that same be filed within seven days thereafter the order was made for having been filed out of time.
3.03. Whether the learned lower Court judge erred in law when he suo motu raised the issue of filing processes out of time by the Appellant and resolving them without calling on the parties to address the Court on that.
3.04. Whether the right of the appellants to fair hearing was not denied by the striking out of their Written Reply and Counter Affidavit and the subsequent delivery of the judgment on the application without consideration of the Appellants? defences as presented in their

Written Reply and Counter Affidavit.

In the respondent?s brief of argument, learned counsel crafted four issues for determination viz:
1. Whether the finding or decision of Court not appealed against is valid and subsisting.
2. Whether the trial Court was right to treat the Counter Affidavit filed on 2-2-2016 to be filed out of time?
3. Whether the learned lower Court judge erred in law when he suo moto raised the issue of filing processes out of time by the Appellant and resolving them without calling on the parties to address the Court on that.
4. Whether considering the way and manner the Appellant conducted their purported defence one can say that their fair hearing was breached?

A close look at the two sets of issues shows that they are identical in substance. In fact, the respondents? issues can be, conveniently, subsumed under the appellants?. For this reason of sameness, I will decide the appeal on the issues formulated by the appellants: the undoubted owners of the appeal. For reasons that will unfold anon, I will deal with issues one and four first.
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Arguments on the issues:
Issue one
Learned counsel for the appellants submitted that Order XV Rule 4 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 (herein abridged to FREPR, 2009) provided that in situations, not covered by them, resort should be made to the civil procedure rules for the time being in force. He noted that the application was before Akwa Ibom State High Court and that in the absence of adequate provision in FREPR, 2009, the Akwa Ibom State High Court (Civil Procedure) Rules, 2009 (High Court Rules for short) should apply. He stated that the lower Court wrongly made use of the Black?s Law Dictionary in the computation of time: He reproduced Order 44 of the High Court Rules on computation of time. He explained that the 5 days given to the appellants to file their reply concluded the date of the order. He added that by Order 44 of the High Court Rules, Saturdays and Sundays would not be calculated and where an event ended with them, time would continue on the next day. He maintained that the lower Court wrongly struck out the appellants? written reply filed on 7th December, 2015.
?
On behalf of the respondent, learned counsel contended that by

Order 2 Rule 6 of FREPR, 2009, the appellants had 5 days to file their written address. He noted that the appellants did not obey the provision nor the order of the lower Court which was an affront to justice itself. He posited that where a statute provided a method for performing an act or a duty, that method must be adopted or deemed not accomplished. He relied on Abubakar v. Yar?Adua (2009) 5 WRN 23; Ibrahim v. INEC (1999) 8 NWLR (Pt. 614 334; Amaechi v. INEC (2008) vol. 158 LRCN 100; CAC v. Seven Up Bottling Co. (2017) 5 NWLR (Pt. 1558) 244. He described the issue of computation of time as obiter while the lower Court wanted to expose the various acts of non-compliance with the rules or order of Court by the appellants. He reasoned that the appellants? reliance on High Court Rules would not avail them because they had unclean hands. He declared that the appellants never obeyed Order 44 Rule 4(2) of the High Court Rules by paying the penalty fees. He persisted that the appellants filed no competent written reply.

Issue four:
Learned counsel for the appellants submitted that fair hearing is a constitutional right and breach

of it in a matter would amount to a null decision and the judgment would be set aside. He relied onA.-G., Rivers State v. Ude (2006) 17 NWLR (Pt. 1008) 436; Section 36(1) of the Constitution, as amended. He claimed that the order to make when fair hearing was breached would be one of retrial. He cited C.K. & W.M.C. Ltd v. Akingbade (2016) 14 NWLR (Pt. 1533) 487. He described the duty of Court as doing justice. He postulated that when a decision was against all known rules and principles, then it was not made in the interest of justice. He referred to Banna v. Telepower Nig. Ltd. (2006) 15 NWLR (Pt. 1001) 198. He asserted that exclusion of the appellants? defence breached their right to fair hearing. He urged the Court to order a retrial before another Court.

For the respondent, learned counsel argued, per contra, that the appellants disobeyed the order of Court on when to file their written reply and so willfully refused to use the opportunity extended to them and could not be heard to complain of denial of fair hearing. He enumerated the qualities that entitled or disentitled parties from fair hearing. He referred to

Newswatch Comm. v. Atta (2006) vol. 139 LRCN 1898. He took the view that the appellants did not use the opportunity given to them and should not blame anybody. He narrated circumstances under which fair hearing should be invoked by parties. He cited Kolo v. COP (2017) 9 NWLR (sic: no part) 157; Adebayo v. A.-G., Ogun State (2008) 7 NWLR (Pt. 1085) 201.

Resolution of the issues:
In total loyalty to the dictate of the law, I will attend to issue one first. The reason is not far-fetched. It evinces a jurisdictional question in that it orbits around the lower Court?s vires to use the appellants? written reply as an incompetent process. The law mandates the Courts to accord prime attention to issue of jurisdiction first where it germinates from any proceedings, see Oku v. Umeh (2016) 4 NWLR (Pt. 1501) 120; Brittania-U (Nig) Ltd. v. Seplat Pet. Dev. Co. Ltd. (2016) 4 NWLR (P. 1503) 541; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Ngere v. Okuruket ?xiv? (2017) 5 NWLR (Pt. 1559) 440. I will pay total obedience to this legal commandment so as not to

insult the law. The issue, though a nagging one, is canalised within a narrow compass.

Now, the appellants? coup de main, on the slim issue, is that their written reply was competent before the lower Court for use in the determination of the case. In this wise, I have, in due allegiance to the desire of the law, visited the record, the spinal cord of the appeal, especially at the residence of the proceedings of 2nd December, 2015 which colonises pages 191 and 192. The lower Court, in granting the appellants? application of 26th November, 2015, which was not greeted with any opposition by the respondent, ordered: ?1st and 2nd respondents [appellants] to file their counter and written reply addresses within five (5) days from today?. This terse order is, to my mind, comprehension – friendly as it harbours no ambiguity. The employment of the preposition ?from? in the order, clearly, discloses that the five (5) days granted to the appellants would begin to run on 2nd December, 2015 which was the ?today? therein.
The law, in its wisdom, does not, in the least grant this Court or the parties

the licence to import any other date for the commencement of the computation of the five (5) decreed in the order. The reason is plain. An appellate Court is bound by the contents of the record. It is derobed of the jurisdiction to read into what is absent from it nor add into it what is outside the record. In other words, it must construe the record in its exact content. The parties are bound by the record too, see Orugbo v. Una (2002) 16 NWLR (Pt. 792) 175; Ogidi v. State (2005) 5 NWLR (Pt. 918) 286; O. O. M. F. v. N. A. C. B. Ltd. (2008) 12 NWLR (Pt. 1098) 412; Ekpemupolo v. Edremoda (2009) 8 NWLR (Pt. 1142) 166; International Bank Plc. v. Onwuka (2009) 8 NWLR (Pt. 1144) 462; Sapo v. Sunmonu (2010) 11 NWLR (Pt. 1205) 374; Akanbi v. Oyewale (2009) ALL FWLR (Pt. 456) 1922; Offor v. State (2012) 18 NWLR (Pt. 1333) 421; Adegbuyi v. APC (2015) 2 NWLR (Pt. 1442)1; Brittania-U (Nig.) Ltd. v. Seplat Pet Dev. Co. Ltd. (2016) 4 NWLR (Pt. 1503) 541; PDP v. Umana (No.2) (2016) 12 NWLR (Pt. 1526) 307. I must pay due fidelity to this hallowed and inelastic principle of law. Thus, the order, on the footing of its tenor, has limited the time for calculation of

the five (5) days to start from 2nd December, 2015.
However, it is decipherable from the heading of the proceeding of the 2nd December, 2015, as manifest in the record, the bedrock of the appeal, that the 2nd December, 2015 was a Wednesday. It flows, that five (5) days from that date would end on 6th December, 2015 which was a Sunday. In this perspective, the provision of Section 15 (2)(b) and (3) of the Interpretation Act comes in handy. Due to its pivotal role here, it is imperative to pluck it out, where it is ingrained in the statute book, ipsissma verba, thus:
(2) A reference in an enactment to a period of days shall be construed-
(b) where apart from this paragraph the last day of the period is a holiday, as continuing until the end of the next following day which is not a holiday.
(3) Where by an enactment any act is authorized or required to be done on a particular day and that day is a holiday, it shall be deemed to be duly done if it is done on the next following day which is not a holiday.
This provision, which is submissive to clarity, endorses/validates any act executed on the next day following a holiday the

performance of which terminated on a holiday, see Etsako West LGC v. Christopher (2014) 14 NWLR (Pt. 1426) 73. It stems this sacrosanct provision, that the appellants? written reply which was filed on 7th December, 2015, ?the next following day which is not a holiday?, was filed in due obeisance to the law. This is because 6th December, 2015 was a Sunday and generally, deis non juridicus. For purposes of ex abundanti cautela, by virtue of Section 15(2)(a) of the Interpretation Act, the 2nd December, 2015 should be excluded and the computation should begin on 3rd December, 2015, see Akeredolu v. Akinremi (1985) 2 NWLR (Pt. 10) 787; Petgas Resources Ltd. v. Mbanefo (2018) 1 NWLR (Pt. 1601) 442. Following the provision, the 7th December, 2015 was the last day for the appellants to file their written reply. In other words, the written reply, no matter the angle it is viewed, was a competent process before the lower Court. I crown it with the toga of validity and viability.

This brief legal anatomy, with due reverence, punctures the seemingly sterling argument of the learned respondent?s counsel on the issue. The lower

Court, with all due respect, fractured the law when it, unjustifiably, ostracised the written reply as an incompetent process. In the result, I have no choice than to resolve the issue one in favour of the appellants and against the respondent.

That brings me to the settlement of issue four: the heartbeat of the appeal. The kernel of the issue is clear. The appellants? chief grievance, indeed their trump card in the appeal, is that the lower Court?s decision constituted an erosion of their inviolable right to fair hearing as guaranteed by the provision of Section 36(1) of the Constitution, as amended. Fair hearing connotes a trial which is conducted in accordance with all the legal rules formulated to ensure that justice is done/dished out to parties to the cause, seeEze v. FRN (2017) 15 NWLR (Pt. 1589) 433; Ardo v. INEC (2017) 13 NWLR (Pt. 1583 450; Regt. Trustees, P.C.N. v. Etim (2017) 13 NWLR (Pt. 1581) 1; Akingbola v. FRN (2018) 14 NWLR (Pt. 1640) 395. Due to its olympian status in the appeal, it is germane to display some of the notable features of fair hearing ? a mantra which, nowadays, competes with jurisdiction for prominence in adjudications.

FAIR HEARING : WHAT IT ENTAILS

FAIR HAERING: PARAMETERS SET BY COURTS TO ENSURE THAT FAIR HEARING IS FIOLL
The apex Court, in Baba v. Civil Aviation (1991) 7 SCNJ (Pt. 1) 1 at 24/(1991) 5 NWLR (Pt. 192) 388 at 423, per Nnaemeka-Agu, JSC, evolved the parameters to guide the Court to ensure fair hearing to include the right of the person to be affected:
(i) to be present all through the proceedings and hear all the evidence against him;
(ii) to cross-examine or otherwise confront or contradict all the

witnesses that testify against him;
(iii) to have read before him all the documents tendered in evidence at the hearing;
(iv) to have disclosed to him the nature of all relevant material evidence, including documentary and real evidence, prejudicial to the party, save in recognised exceptions;
(v) to know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence; and
(vi) to give evidence by himself, call witnesses if he likes, and make oral submissions either personally or through a counsel of his choice.
See also, JSC, Cross River State v. Young (2013) 11 NWLR (Pt. 1364) 1; Eze v. FRN (supra).
I have consulted the record, the bible of the appeal, particularly at the abode of the decision of the lower Court, sought to be impugned, which monopolises pages 200-213 of it. I have perused the 14-page judgment with the finery of a tooth comb. Admirably, it is rebellious to ambiguity. At page 203, lines 15-19, of the record, the lower Court ordered:
The 1st and 2nd respondents [appellants] failed, refused and or neglected to obey the order of this Court made on 2/12/15

thereby rendering their process incompetent and ought to be struck out. The 1st and 2nd respondent?s (sic) written reply being incompetent is hereby struck out.
To begin with, the appellants? written reply, expelled by the lower Court, was a classic exemplification of a final address: a right cognisable and donated to them by Section 294(1) of the Constitution, as amended. Final address connotes. ?The last or ultimate speech or submission made to the Court in respect of issue before it, before the delivery of judgment. It is the last address before the delivery of judgment,? see Ijebu-Ode L.G. v. Adedeji Balogun & Co. (1991) 1 NWLR (Pt. 166) 136 at 156, per Karibi-Whyte, JSC., Sodipo v. Lemminkainen Oy (1985) 2 NWLR (Pt. 8) 547; Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt. 58) 539; Kalu v. State (2017) 14 NWLR (Pt. 1586) 522.
It can be gleaned from the displayed excerpt, the order, which is disobedient to equivocation, that the lower Court did not afford the appellants the critical opportunity to tender their final address, through their counsel, on the expunction of the written reply. Indeed, based on the

phraseology of the extracted order, the lower Court foreclosed and sacrificed the appellants? right to address it on the undeserved shrine of pseudo-incompetence of the written reply.
It is important to catalogue the gains of final address as contemplated by the sacrosanct provision of Section 294(1) of the Constitution, as amended. Address of counsel, though unable to cover lack of evidence, are designed to aid the Courts to appreciate the nature, strength and weakness in the cases of parties. It has the potential to bend the scale of justice in favour of a party who presents scintillating address, laced with alluring lexical dexterity, demonstrative of impregnable advocacy. It lost the benefits, it would have reaped from the appellants? reply, which would have assisted it in the fair determination of the case.
The caustic effect of denial of addresses to parties vis a vis proceedings is wrapped in Ndu v. State (1990) 7 NWLR (Pt. 164) 550/(1990) 21 NSCC (Pt. 3) 505. Therein, Akpata, JSC, succinctly, stated:
It is generally accepted that the hearing of addresses from counsel before delivery of judgment is an important exercise

in judicial proceedings in our Courts. The entire proceedings may be declared a nullity if a counsel is denied the right to address the Court at the close of evidence.
See also, Obodo v. Olomu (1987) 3 NWLR (Pt. 59) 111/(1987) 2 NSCC, vol.18, 824 at 831; Niger Construction Co. Ltd. v. Okugbeni (1987) 11/12 SCNJ 113/(1987) 4 NWLR (Pt. 67) 787; Ayisa v. Akanji (1995) 7 NWLR (Pt. 406) 129; Kalu v. State (supra). Thus, the striking of the appellants? properly and timely- filed written reply, on the ground of phantom incompetence, constitutes an infraction of their inviolable right to fair hearing as enshrined in Section 36(1) of the Constitution, as amended.
As already noted, the law allots to the appellants the unbridled licence to present their case before the lower Court. The denial curtailed their right, qua counsel, to address the Court, see Mpama v. FBN Plc. (2013) 5 NWLR (Pt. 1346) 176; Achuzia v. Ogbomah (2016) 11 NWLR (Pt. 1522) 59. Thus, this is a quintessential instance of violation of the appellant?s inviolate right to fair hearing as entrenched in Section 36(1) of the Constitution, as amended. Put simply, the appellants

discharged the burden to prove a denial of fair hearing which the law has saddled on him, see Maikyo v. Itodo (2007) 7 NWLR (Pt. 1034) 443; S & D Const. Co. Ltd. v. Ayoku (2011) 13 NWLR (Pt. 1265) 487. The appellants needed not to prove the damages or losses they incurred consequent upon the breach of their right to fair hearing, see Oshiomhole v. Airhiavbere (2013) 7 NWLR (Pt. 1353) 376. A proof of breach of fair hearing carries with it a miscarriage of justice. Put differently, a miscarriage of justice is inherent in a breach of a right to fair hearing, seeMpama v. FBN Plc. (supra); Eze v. Unijos (2017) 17 NWLR (Pt. 1593) 1.
Where a party?s sacred right to fair hearing is flouted, as in this case, no matter the quantum of fair-mindedness, dexterity, artistry and objectivity injected into the proceeding hosting the breach, it will be mired in a nullity, see Nyesom v. Peterside (2016) 7 NWLR (Pt. 1512) 452; C.K & W. M. C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487; Eze v. Unijos (supra); Ezenwaji v. U.N.N. (2017) 18 NWLR (Pt. 1598) 485; Poroye v. Makarfi (2018) 1 NWLR (Pt. 1599) 91; APC v. Nduul (2018) 2 NWLR (Pt. 1602) 1; S.A.P. Ltd.v. Min., Petroleum Resources ?

(2018) 6 NWLR (Pt. 1616) 391; Zenith Plastics Ind. Ltd v. Samotech Ltd. (2018) 8 NWLR (Pt. 1620) 165. This is a confluence point where want of fair hearing and jurisdiction embrace themselves to vitiate proceedings that give birth to denial of fair hearing, see O.O.M.F. Ltd. v. NACB Ltd. (supra); Ovunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522; Achuzia v. Ogbomah (supra); Apeh v. PDP (2016) 7 NWLR (Pt. 1510) 153; Abah v. Monday (2015) 14 NWLR (Pt. 1480) 569.
In the eyes of the law, nullity denotes: ?Nothing; no proceeding; an act or proceeding in a case which the opposite party may treat as though it had not taken place; or which has absolutely no legal force or effect?, see Lasisi v. State (2013) 12 NWLR (Pt. 1367) 133 at 146, per Ngwuta JSC; Ezenwaji v. U.N.N. (supra); Mamman v. Hajo (2016) 8 NWLR (Pt. 1575) 411. The dire consequence of a nullity is far-reaching. If a decision or proceeding is soiled with nullity, it is void and taken as it was never given or made, see Okoye v. Nigeria Const. & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501; Bello v. INEC (2010) 8 NWLR (Pt. 1196) 342. Moreover,

such a decision or proceeding, in the view of the law, bestows no enforceable right on its beneficiary party who possesses it nor does it impose any obligations on its victim party, see Ajiboye v. Ishola (2006) 13 NWLR (Pt. 998) 628; Oyeneyin v. Akinkugbe (2010) 4 NWLR (Pt. 1184) 265. The bounden duty of a Court is to set aside a null order ex debito justitiae in that it does not exist in law, see Mamman v. Hajo (supra); N.A.C.B. Ltd. v. Ozoemelam (2016) 9 NWLR (Pt. 1517) 376; Oyeyemi v. Owoeye (2017) 12 NWLR (Pt. 1580) 364.
It flows from the inelastic positions of the law anatomised above, that the lower Court?s decision of 4th May, 2016 was/is marooned in the intractable web of nullity. Since the decision is hostile and offensive to the law, it must be mowed down by the unbiased judicial sword of this Court. In the end, I have no option than to resolve the issue four in favour of the appellants and against the respondent.
My noble Lords, for the sake of completeness, the order to make when a person breaches a party?s unforfeitable right to fair hearing, as engraved in Section 36(1) of the Constitution, as amended, is not a moot a

point. It is settled that: ?once there is such a denial of the said right [right to fair hearing] the only order that could be made on appeal is one for re-trial or re-hearing. This is to enable the appellant to be properly heard,? see Kalu v. State (2017) 14 NWLR (Pt. 1586) 522 at 547, per Nweze, JSC; Danladi v. Dangiri (2015) 2 NWLR (Pt. 1442) 124; C.K. & W.M.C. Ltd. v. Akingbade (supra); Akingbola v. FRN (supra). Moreover, once an appellate Court intends to order, or orders, for a re-hearing, the law forbids it from treating any other issues in the appeal or points that may arise at the rehearing proceedings, see C. K. & W.M.C. Ltd. v. Akingbade (supra); Ovunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522. I will pay due allegiance to this injunction of the law so as not to prejudice the issues that may crop up during the rehearing sessions. I am, therefore, drained of the requisite jurisdiction to treat the appellants? issues two and three.
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On the whole, having resolved the issues one and four in favour of the appellants, the fortune of the appeal is obvious. It is imbued with merit. Consequently, I allow the appeal.

Accordingly, I set aside the judgment of the lower Court delivered on 4th May, 2016. I remit Suit No. HA/FHR/21/2015, filed by the respondent, to The Chief Judge of Akwa Ibom State for re-assignment to another Judge for hearing de novo. The parties shall bear the respective costs they incurred in the prosecution and defence of the fruitful appeal.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the opportunity of reading in draft the judgment just delivered by my learned brother, OBANDE FESTUS OGNUINYA, JCA and I agree with the resolution of the main and jurisdictional issue presented for determination in this appeal.

A breach of fair hearing in a proceedings is simply irredeemable, no logic or persuasive argument can save it. The destination is setting aside the said proceedings. There was a breach of fair hearing to the Appellant’s right to fair hearing. They must out of respect for the Constitution of the Federal Republic of Nigeria be afforded that opportunity.

The appeal is meritorious in that regard and the proceedings of the Court below must be set aside. I also adopt the other orders made in the lead judgment.
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MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the opportunity of reading in draft the judgment just read by my brother Obande F. Ogbuinya, JCA. I agree that the appeal is meritorious and should be allowed. I too allow the appeal and abide by all the consequential orders contained in the lead judgment.

Appearances:

No legal representationFor Appellant(s)

Ernest Usah, Esq.For Respondent(s)

Appearances

No legal representationFor Appellant

AND

Ernest Usah, Esq.For Respondent