ADAMU v. KADIRU
(2022)LCN/15987(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Friday, May 13, 2022
CA/YL/09/2018
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
Fatima Omoro Akinbami Justice of the Court of Appeal
Mohammed Lawal Abubakar Justice of the Court of Appeal
Between
IBRAHIM ADAMU APPELANT(S)
And
AHMAD YAHAYA KADIRU RESPONDENT(S)
RATIO
THE FUNDAMENTAL PRINCIPLE OF FAIR HEARING
Now, the definition of a fair hearing in cases as entrenched in Section 33(1) of the 1979 Constitution (now Section 36(1) of the 1999 Constitution) was given by Obaseki, JSC in ARIORI & ORS Vs. ELEMO & ORS (1983) 1 SC 13 at pages 23 – 24 in these words:-
“Fair hearing, therefore must mean a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties.”
See PATIENCE JONATHAN Vs. F R N (2019) (Pt. 1) Volume 77, NSCQR Per K. B. Aka’ahs JSC. See also UGURU Vs. STATE (2002) 9 NWLR (Pt. 771) 90”. PER ABUBAKAR, J.C.A.
THE POSITION OF LAW ON THE EFFECT OF LACK OF FAIR HEARING
On the effect of lack of fair hearing, this Court and the Supreme Court had on many occasions made pronouncements on matters of Fair hearing that the right to fair hearing in civil matters or criminal prosecutions as contained in Section 36(1) and 36(4) of the 1999 Constitution is the same and once the twins pillars of audi alteram parten and nemo judex in causa sua are not observed, the whole proceedings including any decision arrived at will be declared a nullity. Any law enacted that impinges on the right to fair hearing will therefore be in conflict with the said Section 36 (1) or 36 (4) of the Constitution and to the extent of the inconsistency be declared null and void. See PATIENCE JONATHAN Vs. F. R. N. (Supra) Per K. B. Aka’ahs JSC at page 32, POROYE Vs. MAKARFI (2017) 71 Pt. 1 NSCQR Per M. D. Muhammad JSC at pages 156 – 157. PER ABUBAKAR, J.C.A.
WHETHER OR NOT IT IS THE DUTY OF THE COURT TO CONSIDER ALL ISSUES RAISED BEFORE IT FOR DETERMINATION
Now, it is trite law that it is the duty of the Court whether of first instance or appellate, to consider all issues that have been joined by the parties and raised before it for determination. If the Court failed to do so, without a valid reason then it has failed in its duty. For in judicial system, it is fundamental principle of administration of justice that every Court has a duty to hear, determined and resolve such question. A Court should not deal with issues not before it; so also when a party submits an issue to the Court for determination, it must make a pronouncement on that issues except where the issue is subsumed in another issue. See IROLO Vs. UKA (Supra).
It is also trite that every Court is duty bound to consider all issues raised or presented before it by the parties for determination and not to gloss over them. PER ABUBAKAR, J.C.A.
THE EFFECT OF ORIGINATING SUMMONS
Now, it is trite that originating summons though one of the models of commencing an action in the High Court is not suitable for use in hostile proceedings where the facts are in dispute or likely to be in dispute. See OSSAI Vs. WAKWAH (2006) 4 NWLR (Pt. 969) page 208 per W.S.N. Onnoghen JSC (as he then was)
The Supreme Court, in the case of HUSSAINI ISA ZAKARI Vs. SALISU DAN AZUMI MUHAMMAD & ORS (2017) LPELR 42349 (SC) held as follows:-
“In effect, originating summons is a procedure wherein evidence is mainly by way of documents and there is no serious dispute as to their existence in the pleadings, it is usually heard on affidavit evidence and involve questions of law rather than issues of facts.”
See also FRIDAY SANI Vs. KOGI STATE HOUSE OF ASSEMBLY (2019) 77 Pt. 1, NSCQR Per W.S.N. Onnoghen JSC at pages 415 – 416, ORKAR JEV Vs. IYORTYON (2014) 58 Pt. II NSCQR per J. I Okoro JSC at page 1161 where the Supreme Court held:-
“The general principle of law regarding conflicts in affidavit in an originating summons procedure is that where this is the case, the Court should order for pleadings in order for the parties to lead evidence to resolve such conflicts. PER ABUBAKAR, J.C.A.
MOHAMMED LAWAL ABUBAKAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Justice Taraba State sitting at Jalinngo wherein the Court, in a suit initiated by the respondent, entered judgment in favour of the respondent. Dissatisfied with the decision, the Appellant filed this appeal for redress.
The brief statement of facts is that the Respondent as Plaintiff before the trial Court instituted an action by way of originating summons against the Appellant praying for an order compelling the Appellant to handover to the Respondent vacant possession of House lying and statute at Jauro Voto, Jalingo, Taraba State.
In opposition to the originating summons filed by the Respondent, the Appellant filed a counter-affidavit and a written address dated and filed on the 29/9/2017. The respondent then filed a Further and better Affidavit and a Reply on points of law.
On the 11/10/2018, the trial Court discountenance with the further and better affidavit filed by the Respondent. The parties adopted their respective processes filed before the trial Court excluding the Further and better Affidavit which was earlier discountenance by the trial Court and the matter was adjourned for ruling.
On the 23/10/2018, the trial Court delivered its judgment in favour of the Respondent, granted all the reliefs sought and awarded a cost of N30,000.00 against the Appellant and in favour of the Respondent. Dissatisfied with the judgment, the Appellant filed this appeal.
In compliance with the rules of this Court the parties filed and exchanged their respective briefs of argument. The Appellant’s amended brief filed on 30/9/2020 and deemed on 26/1/2020 was settled by Mohamed Abubakar Esq while the Respondent brief of argument was filed on 29/11/2020 and deemed on 26/1/2022 was settled by Vaatsan Esq. In the Appellant brief of argument (7) issues were raised for determination to wit:-
1. Whether the trial Court breached the appellant’s right to fair hearing when it suo motu revisited its own ruling which discountenance with the further and better affidavit filed by the Respondent as the time of writing it’s judgment and without calling the parties to address the Court on the issue, deal with the issue alone and proceeded to admit the further and better affidavit and based its decision on it? (This issue is distilled from grounds two and three of the amended notice of appeal)
2. Whether the trial Court abdicated it’s judicial responsibility when it failed to pronounce on the issue of propriety or otherwise of Suit No. TRSJ/118/17 initiated by way of originating summons raised by the Appellant before the trial Court and whether such failure has occasioned a miscarriage of justice? This issue is distilled from ground one of the amended notice of appeal).
3. Whether the trial Court was right when it decided this case based on the originating summons and/or affidavit evidence of the parties? (This issue is distilled from ground nine of the amended notice of appeal).
4. Whether the trial Court was not compelled by law to call oral evidence to resolve the conflict in the affidavit evidence of the respondent and that of the Appellant? (This issue is distilled from ground four of the amended notice of appeal).
5. Whether trial Court misapprehended the case of the Appellant before the Court? (Encompassing grounds six, seven and eight of the amended notice of appeal).
6. Whether the trial Court properly evaluated the evidence adduced before it and should the answer be in the negative, whether the decision reached from such improper evaluation is not perverse? (Encompassing grounds eleven, and twelve of the amended notice of appeal).
7. Whether the trial Court was right when it ordered the Appellant to handover vacant possession of the House, the subject matter in dispute in the case. (This issue is distilled from ground ten of the amended notice of appeal).
However, it is noted by this Court, that the Appellant in arguing this Appeal has abandoned issue No. 7 in his Brief of Argument as he offered no submission on it. Consequently, it is deemed abandoned by this Court. This implies the Appellant is left with only six issues for determination of this appeal.
In the Respondent Brief of Argument, the Respondent adopted the six issues for determination formulated by the Appellant.
Having set out the issues formulated by the respective counsels, I’m of the view that this Court ought to also adopt the said issues formulated for ease of reference.
SUBMISSIONS OF COUNSELS ON ISSUE ONE
On issue one, the learned Counsel to the Appellant submit that it is elementary and fundamental principle for the determination of a dispute between parties that judgment must be confined to issues raised by the parties. It is not competent for a Judge to suo motu raised an issue and then proceeds to give judgment on the issue so raised without calling the parties to address the Court on the issue.
The counsel referred to the case of WAGBATSOMA Vs. F R N (2010) 8 NWLR (Pt. 1621) Page 99 at 218.
The learned Counsel also refer this Court to pages 45 and 46 of the Record of Appeal and submit that the trial Court discountenanced with the Further Affidavit filed by the Plaintiff/Respondent and their counsel moved his application without the said Further Affidavit. However, the learned trial Judge suo motu raised the issue of the validity or otherwise of his ruling which discountenanced the Further Affidavit filed by the Respondent in his judgment, resolved same by himself and admit the Further Affidavit without inviting the parties, particularly the Appellant to address him on the issue. This breached the fundamental right to fair hearing of the Appellant and is fatal to the entire decision because any decision of Court arrived at in violation of the fundamental right of a party against whom it is made cannot be valid decision and should be declared a nullity. He cited the case of WAGBATSOMA Vs. F R N (Supra), S. A. P LTD Vs. MIN. PETROLEUM RESOURCES (2018) 6 NWLR (Pt. 391) and HEMBE Vs. HUEZE (2001) 4 NWLR (Pt. 703) page 372.
The learned Counsel to the Appellant urged this Court to hold that the Fundamental Right of the Appellant was breached by the trial Court and should order for retrial.
In response, the Respondent Counsel in their Respondent Brief of Argument submit that the position of the law is that any Court of law is at liberty to set aside its order which is a nullity or is aimed at saving the justice of the case and this must be based on the facts and circumstances of each and every case. See KALU MARK Vs. EKE (2004) 10 NSCQLR 60 at 79 and MADU Vs. MBAKWE (2008) 10 NWLR (Pt. 1095) P. 293 at Pp. 317.
Based on the above-authorities, the Counsel argued that the order of the trial Court made on the 11/10/2017 on page 45 lines 7-15 of the record was against the position of law with regards to the right to fair hearing under Section 36 of the Constitution and Order 10 Rule 26 of the Taraba State High Court (Civil Procedure) Rules 2011 relating to case that are fought based on affidavit evidence. He added that since the Court suo moto without inviting parties can set aside its order that was made in error, it is irrelevant even as the parties were not invited to address it before the trial Court set aside its own order of 11/11/2017 in this case. Since its Further Affidavit is already before the Court, the Court was right to have use in its judgment even without inviting parties. See UZODIMA Vs. IZUNASO (Supra).
The learned Counsel added that assuming but not conceding that the suo moto setting aside of the order of the trial Court made on 11/10/2017 was in error, it is clear that the Appellant in his brief of argument has failed to point out the particular miscarriage of justice said to have caused him. The law is that even if a party succeeds in pointing out that the trial Court has committed an error as alleged by the Appellant in this case, that alone does not automatically lead to the setting aside of the entire judgment. See the case of DIAMOND BANK LTD Vs. PARTNERSHIP INV. CO LTD (2010) 179 LRCN P. 84.
Finally, the learned Counsel to the respondent submit that this Court should discountenance the submissions of the appellant’s Counsel and dismiss the appeal.
RESOLUTION OF ISSUE ONE
This issue one relates to the principle of fair hearing. The grouse of the Appellant is that his right to fair hearing has been breached by the trial Court when it suo moto revisited its own ruling which discountenanced with the Further and Better Affidavit filed by the Respondent at the time of writing its judgment without calling the parties to address the Court on the issue, deal with the issue alone and proceeded to admit the Further and better Affidavit and based its decision on it.
Now, the definition of a fair hearing in cases as entrenched in Section 33(1) of the 1979 Constitution (now Section 36(1) of the 1999 Constitution) was given by Obaseki, JSC in ARIORI & ORS Vs. ELEMO & ORS (1983) 1 SC 13 at pages 23 – 24 in these words:-
“Fair hearing, therefore must mean a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties.”
See PATIENCE JONATHAN Vs. F R N (2019) (Pt. 1) Volume 77, NSCQR Per K. B. Aka’ahs JSC. See also UGURU Vs. STATE (2002) 9 NWLR (Pt. 771) 90”.
On the effect of lack of fair hearing, this Court and the Supreme Court had on many occasions made pronouncements on matters of Fair hearing that the right to fair hearing in civil matters or criminal prosecutions as contained in Section 36(1) and 36(4) of the 1999 Constitution is the same and once the twins pillars of audi alteram parten and nemo judex in causa sua are not observed, the whole proceedings including any decision arrived at will be declared a nullity. Any law enacted that impinges on the right to fair hearing will therefore be in conflict with the said Section 36 (1) or 36 (4) of the Constitution and to the extent of the inconsistency be declared null and void. See PATIENCE JONATHAN Vs. F. R. N. (Supra) Per K. B. Aka’ahs JSC at page 32, POROYE Vs. MAKARFI (2017) 71 Pt. 1 NSCQR Per M. D. Muhammad JSC at pages 156 – 157.
Based on the above mentioned authorities, I have carefully perused pages 45, 46, 55 and 56 of the record of appeal and found that the trial Court actually discountenanced the Further Affidavit filed by the Plaintiff/respondent and consequently, the Plaintiff/Respondent’s Counsel moved his application without the said Further Affidavit. Surprisingly, the learned trial Judge suo motu in his final judgment, raised the issue of the validity or otherwise of his ruling which discountenanced the said further Affidavit, resolved same by himself and admit the said further Affidavit without inviting parties, particularly the Appellant to address him on the issue.
I hold that this is a clear breach of the right to fair hearing of the Appellant and consequently the whole proceeding is a nullity. This issue one is resolved in favour of the Appellant and against the Respondent. See FRIDAY SANI VS. KOGI STATE HOUSE OF ASSEMBLY (2019) 77 NSCQR Pt. 1 per W. S. N. Onnoghen JSC Page 418.
SUBMISSIONS OF COUNSELS ON ISSUE TWO
The learned Counsel to the Appellant submit that it is settled that a Court of law is bound to consider and pronounce on all issues canvassed by the parties even when such issues appear superfluous or spent. This is to enable the Court exercising appellate jurisdiction to determine the issue even if on the alternative. See IROLO Vs. UKA (2002) 14 NWLR (Pt. 786) P. 195. RASAKI Vs. AJIJOLA (No. 1) (2018) 7 NWLR (Pt. 1617) where the Supreme Court, Per Amiru Sanusi JSC held at page 33 paras. C – D held as follows:
“Every Court is duty bound to consider all issues raised or presented before it by parties for determination and not to gloss over them.”
The learned Counsel to the Appellant argued that in this instants case, the Appellant raised the issue as to the propriety or otherwise of commencing the case before the trial Court by way of originating summons. See pages 25 – 29 of the Record. And the Respondent joined issues with the Appellant on the said issue. See pages 40 – 41 of the Record. The trial Court has also acknowledged the fact that the parties have joined issues on the propriety or otherwise of commencing the action by way of originating summons by summarizing the argument of the parties on the issue. See pages 52 – 54 of the Records. However, the trial Court glossed over the issue and failed to consider, address or make a specific pronouncement on same and resolve same.
The Counsel submit that the failure of the trial Court to make any pronouncement on the issue is a serious error which calls for intervention of this Court. See OKEKE OBA Vs. OKOYE (1994) 8 NWLR (Pt. 364) P. 608.
The learned Counsel urged this Court to resolve this issue in their favour and against the Respondent.
In reaction, the learned Counsel to the Respondent submit that the evidence on record is so clear that the trial Court properly assessed the two issues, though alternatively before it by the Appellant and arrived at a clear conclusion that the case for the respondent succeeded on merit and is grantable by the rules of the trial Court. See pages 53 – 55 and 58 of the Record. The Counsel urged this Court to hold that the trial Court resolve or make its findings on issue 1 submitted by the Appellant for determination at the trial Court. The Counsel added that even if the trial Court did not resolve or make findings on the issue, that alone does not affect the validity of the judgment of the trial Court in this case. See EJEZIE Vs. ANUWU (2008) All FWLR (Pt. 422) page 1005.
The counsel added that it is not every mistake of a trial Court that can lead to reversal of the judgment of a trial Court. See FALEYE & ORS Vs. DADA & ORS (2016) 262 LRCN page 38 at 69. The Counsel urged this Court to resolve this issue in their favour and dismiss this appeal.
RESOLUTION OF ISSUE TWO
This issue relates to the propriety or otherwise of commencing this case at the trial Court by way of originating summons. The grouse of the Appellant Counsel is that he raised the issue at the trial Court and the Respondent joined issues with the Appellant but the trial Court failed to consider, address or make specific pronouncement on same and resolve same.
Now, it is trite law that it is the duty of the Court whether of first instance or appellate, to consider all issues that have been joined by the parties and raised before it for determination. If the Court failed to do so, without a valid reason then it has failed in its duty. For in judicial system, it is fundamental principle of administration of justice that every Court has a duty to hear, determined and resolve such question. A Court should not deal with issues not before it; so also when a party submits an issue to the Court for determination, it must make a pronouncement on that issues except where the issue is subsumed in another issue. See IROLO Vs. UKA (Supra).
It is also trite that every Court is duty bound to consider all issues raised or presented before it by the parties for determination and not to gloss over them.
Based on the above-mentioned authorities, I have carefully considered the record of appeal particularly pages 25 – 29, 40 – 41 and 52 – 54 and found that the parties had joined issues on the propriety or otherwise of commencing the action by way of originating summons. The trial Court had also acknowledged such fact but the trial Court failed or neglected to consider, address or make specific pronouncement and resolve same as required by the law.
I agree with the submissions of the Appellant counsel. This issue two (2) is resolved in favour of the Appellant and against the Respondent.
SUBMISSIONS OF COUNSEL ON ISSUES THREE (3) AND FOUR (4)
The learned Counsel to the Appellant submit that it is settled that originating summons is a procedure that can be employed only when the circumstances of the case are such that there is no material dispute or the likelihood of any material dispute on question of facts where however as in this instant case, there is likelihood of dispute on question of facts, there can be no recourse to the use of originating summons. See ALFA Vs. ATTAI (2018) 5 NWLR P. 59, AJAGUNGBADE II Vs. ADELEYE II (2001) 16 NWLR (Pt. 738) Page 126.
The learned Counsel argued that in the instant appeal, the facts in the Affidavit in support of the originating summons have been seriously controverted in the Appellant’s counter-Affidavit which necessitate the filing of a further and better Affidavit that prompted the Appellant’s counsel to apply to file a further counter-Affidavit. See paragraphs 4, 17, 26, 29 – 31 of the Appellant’s counter Affidavit at pages 16 – 19 of the Record of Appeal and Respondent’s Affidavit paragraphs 3(a) to (k) of pages 3 and 4 of the Record as well as paragraphs 3 -17 of the Respondent’s Further Affidavit at pages 36 – 39 of the Record of Appeal.
The Counsel submit that a careful perusal of the above-mentioned paragraphs would reveal that there is dispute between the parties in respect of every question of fact and exhibits annexed to the Affidavits. This depict hostility in the case and rendered the originating summons proceedings most inappropriate.
The learned Counsel added that the Appellant further compounded the matter by express allegations of criminality in contending that Exhibit ‘A’ is a “forged document”. See paragraph 25 of the Appellant’s counter-affidavit at page 18 of the Record of Appeal.
The Counsel submit that allegation of crime in any civil or criminal proceeding must be proved beyond reasonable doubt. See Section 138 (1) of the Evidence Act and the case of ABUBAKAR Vs. YAR’ADUA (2009) All FWLR Pt. 457.
The learned Counsel further submit that it is settled law that where Affidavit evidence placed before the Court by both parties to an action conflict on material facts, oral evidence must be called to resolve the conflict in the Affidavit evidence. See AHMED Vs. MINISTER OF INTERNAL AFFAIRS (2002) 15 NWLR (Pt. 790) page 239.
The learned Counsel urged this Court to hold that it is mandatory for the learned trial Judge to call oral evidence of the deponents to resolve the conflict and since he has failed to so, this Court should set aside the decision made.
In response, the learned Respondent’s Counsel submit that the submission of the Appellant’s Counsel is misconceived. The evidence in this case is more documentary than oral. Going by Exhibit ‘A’ attached to the Affidavit in support of the originating summons it is clear that the Respondent’s deceased father had bought the property in question from the Appellant which transaction was finalised on 14/6/2016. It is the failure of the Appellant to vacate and handover possession of the property after the completion of the transaction that led to the institution of this Suit now on appeal before this Court.
The Counsel cited Order 51 Rules 1, 3 and 4 of the Taraba State High Court (Civil Procedure) Rules 2011 and argued that the law provided for this kind of suit and there having a document (Exhibit A) to substantiate the case of the Appellant, the case of the Respondent is more credible. See INEC Vs. OSHIOMOLE (2009) 174 LRCN P. 174 at 236. The Counsel urged this Court to hold so.
RESOLUTION OF ISSUE THREES (3) AND FOUR (4)
It is apparent that the above-mentioned issues for determination relates to each others as they questioned whether the trial Court should have decided this case based on originating summons or Affidavit of the parties or oral evidence in view of the visible conflicts in the Affidavits of the parties.
The Appellant’s Counsel contended that facts in the Affidavit in support of the originating summons have been seriously controverted in the Appellant’s Counter-Affidavit which necessitated the filing of a Further and Better Affidavit that prompted the Appellant’s Counsel to apply to file a Further Counter-Affidavit. The Counsel cited many paragraphs of the Affidavit and Counter-Affidavit to prove that there is dispute between the parties. There is also dispute on the exhibits annexed by the parties. However, the Respondent’s Counsel submit to the contrary and argued that the evidence at the trial Court is more documentary than oral. The trial Judge is therefore right in determining the case based on originating summons per Order 51 Rules 1, 3 and 4 of the Taraba State High Court Civil Procedure Rules 2011.
Now, it is trite that originating summons though one of the models of commencing an action in the High Court is not suitable for use in hostile proceedings where the facts are in dispute or likely to be in dispute. See OSSAI Vs. WAKWAH (2006) 4 NWLR (Pt. 969) page 208 per W.S.N. Onnoghen JSC (as he then was)
The Supreme Court, in the case of HUSSAINI ISA ZAKARI Vs. SALISU DAN AZUMI MUHAMMAD & ORS (2017) LPELR 42349 (SC) held as follows:-
“In effect, originating summons is a procedure wherein evidence is mainly by way of documents and there is no serious dispute as to their existence in the pleadings, it is usually heard on affidavit evidence and involve questions of law rather than issues of facts.”
See also FRIDAY SANI Vs. KOGI STATE HOUSE OF ASSEMBLY (2019) 77 Pt. 1, NSCQR Per W.S.N. Onnoghen JSC at pages 415 – 416, ORKAR JEV Vs. IYORTYON (2014) 58 Pt. II NSCQR per J. I Okoro JSC at page 1161 where the Supreme Court held:-
“The general principle of law regarding conflicts in affidavit in an originating summons procedure is that where this is the case, the Court should order for pleadings in order for the parties to lead evidence to resolve such conflicts.
However, where there are documents annexed to the affidavit of the parties which can be effectively used to resolve the seemingly conflicts, there would be no need to order for pleading.” Based on the above-mentioned Supreme Court authorities, I have carefully considered the record of Appeal, the Briefs of Arguments of the parties and found that there is dispute between the parties. See paragraphs 4, 17, – 26, 29 – 31 of the Appellant Counter-Affidavit and paragraphs 3 (a) – (k) of the Respondent’s affidavit at pages 3 and 4 of the Record of appeal as well as paragraphs 3 – 17 of the Respondent’s Further Affidavit at pages 36 – 39 of the Record. Moreover, the Appellant in his counter-affidavit at paragraph 25 page 18 of the record raised the issue of criminality in contending that Exhibit ‘A’ is a forged document. The Supreme Court and this Court has held on number of occasions that the law is that when allegation of crime being alleged in a civil suit, it must be pleaded, particulars given and established in evidence by proof beyond reasonable doubt. See Section 138 (1) of the Evidence Act and UKEJE Vs. UKEJE (2014) 58 Pt. I NSCQR Per Bode Rhodes-Vivour JSC at page 511.
In conclusion, I agree with the Appellant Counsel that due to the hostility in the case, the trial Judge should have called for oral evidence to resolve the seemingly conflicts. I hold that issues 3 and 4 are resolved in favour of the appellant and against the Respondent.
Now, at this stage, having determined issues 1 – 4 in favour of the Appellant, am of the view that it will amount to a waste of precious judicial time to determine issues 5 and 6 relating to whether the trial Court properly evaluated the affidavit evidence before it or not. And whether the evaluation is perverse or not. I hold that even on issue one alone bordering on lack of Fair hearing is enough for this Court to set aside the judgment of lower Court and order for retrial before another Judge as the whole proceedings is null and void ab initio.
I firmly hold that there being no evidence on record that learned Counsels were heard on the point raised suo motu by the lower Court on which it based its decision, it is my considered view that decision so reached in the circumstance is vitiated by the breach of the right of fair hearing of the Appellant and liable to be set aside. See FRIDAY SANI Vs. KOGI STATE HOUSE OF ASSEMBLY (2019) 77 Pt. I NSCQR Per W. S. N. Onnoghen JSC at page 419.
Consequently, the decision of the lower Court in Suit No: TRSJ/118/2017 delivered on 23rd October, 2017 sitting in Jalingo is hereby set aside. The Chief Judge of Taraba State High Court of Justice is ordered to remit the matter to another Judge for retrial.
CHIDI NWAOMA UWA, J.C.A.: I read in advance the judgment delivered by my learned brother, MOHAMMED LAWAL ABUBAKAR, JCA. I agree with his reasoning and conclusion arrived at in allowing the appeal for being meritorious.
I abide by the order made in the leading judgment by my learned brother remitting the matter back to the Chief Judge of Taraba State High Court of Justice to be assigned for retrial by another Judge.
FATIMA OMORO AKINBAMI, J.C.A.: I had the singular privilege of reading in draft the judgment just delivered by my learned brother Mohammed Lawal Abubakar, JCA. I agree entirely with the reasoning and conclusion therein.
Fair hearing has been described and defined in a plethora of cases and one of which is ARIORI & ORS V ELEMO & ORS (1983) LPELR-552(SC) as follows:
Fair hearing, therefore, must mean a trial conducted according to all legal rules formulated to ensure that justice is done to the parties to the cause, Per Obaseki, JSC. Test of fairness or fair hearing in proceedings has been explained in the case of OVUNWO & ANOR V WOKO & ORS (2011) LPELR-2841(SC) thus:
“The right to fair hearing is a very essential right for a person to secure justice. A fair hearing connotes or involves a fair trial and a fair trial of a case consists of the whole hearing. R. v. Cambridge University (1723) 1 St 557. Where the person alleging breach of fair heading has established it, it follows that a breach of fair hearing in trials vitiates such proceedings rendering same null and void.” Per ADEKEYE, J.S.C.
There is no evidence on record that, the trial Court heard learned counsel, on the point raised suo motu by the learned trial judge. The lower Court went ahead to base its decision on the point it raised.
I am of the considered opinion that, that decision so reached by the lower Court is vitiated by the breach of the right to fair hearing of the Appellant. Consequently, that decision is liable to be set aside.
I also set aside the decision of the lower Court in Suit No: TRSJ/118/2017 delivered on 23rd October, 2017. The Chief Judge of Taraba State High Court is ordered to remit the matter to another Judge for retrial.
Appearances:
L. P. Mohanan, Esq. (Principal Legal Aid Officer, Legal Aid Counsel Taraba) For Appellant(s)
No appearance For Respondent(s)