ALHAJI SHEHU PETEL & ORS v. ALH. ABDULLAHI IBRAHIM MAITURARE
(2014)LCN/7018(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 25th day of March, 2014
CA/YL/42/2013
RATIO
IMPLICATION OF A COURT FAILING TO ENTERTAIN AND DECIDE ON THE MERIT OF AN APPLICATION BRPUGHT BEFOR IT
It is trite law, that it is the duty of a court to entertain and decide on the merit of any application brought before it by any party, notwithstanding the perceived strength or weakness of such an application. The application may be downright stupid or unmeritorious, but it must be heard. A refusal by a court to hear a motion filed in court is a breach of the applicant’s right to fair hearing guaranteed under the constitution.
The refusal of the lower Court to hear the motion is a violation of the appellant’s right to fair hearing and has occasioned a miscarriage of justice. See Newswatch Communications Limited v. Atta (2006) 12 NWLR (Pt.993) 144 at 168 – 170, Onyekuluje v. Animashaun (1996) 3 NWLR (Pt.439) 637, Mobil Producing Nigeria Unlimited & Anor v. Chief Simeon Monokpo & Ors (2003) 12 SCNJ 206 at 215, Nalsa & Team Association v. N.N.P.C. (1991) 8 NWLR (Pt.212) 652, Otapo v. Summonu (1987) 2 NWLR (Pt.58) 587, Afro Continental (Nigeria) Limited & Anor v. Co-operation Association of Professionals Incorporated (2003) 1 SCNJ 530 AT 531. Per ADAMU JAURO, J.C.A.
WHETHER THE PAYMENT OF FILING FEES IS A PRE_CONDITION TO A COURT’S ASSUMPTION OF JURISDICTION
It is true that once filing fee is not paid on a claim it is a fundamental defect and the court cannot entertain such a claim. Payment of filing fees is a pre-condition to or condition precedent to the court’s assumption of jurisdiction. Per JIMI OLUKAYODE BADA, J.C.A.
JUSTICE
JIMI OLUKAYODE BADAJustice of The Court of Appeal of Nigeria
JUMMAI HANNATU SANKEYJustice of The Court of Appeal of Nigeria
ADAMU JAUROJustice of The Court of Appeal of Nigeria
Between
1. ALHAJI SHEHU PETEL
2. JAURO ABDU
3. YUSI DAN BANGA
4. SA’AD DAN BANGA
5. ARDO KAUDI
6. ALHAJI MAIGARI
7. LAMIDO JAYE
8. LAMIDO SARDE
8. ARDO KABO
10. SIGIRE DAN ALH. KABOAppellant(s)
AND
ALH. ABDULLAHI IBRAHIM MAITURARERespondent(s)
JIMI OLUKAYODE BADA, J.C.A.(Delivering the Leading Judgment): This appeal emanated from the Judgment of the Adamawa State High Court, Yola in SUIT NO-ADSY/34/08: ALH ABDULLAHI IBRAHIM MAITURARE Vs. ALHAJI SHEHU PETEL & 9 OTHERS delivered on the 21st DAY OF MARCH 2013, wherein Judgment was entered in favour of the plaintiff against the defendants jointly and severally.
Briefly, the facts of the case are that the respondent (i.e. the Plaintiff at the lower court) by an amended Writ of summons and a statement of claim both dated 14th November 2008, claims against the defendants jointly and severally as follows:-
“(1) (N5,015,570) Five Million Fifteen Thousand Five Hundred and Seventy Naira being damages for assault and battery.
(2) (N5,000,000.00) Five Million Naira being general damages for false imprisonment.
(3) (N5,000,000.00) Five Million Naira being general damages for slander.
(4) Cost of this suit.”
Pleadings were duly ordered and only the plaintiff called witnesses at the hearing. At the conclusion of hearing, the Learned trial Judge found in favour of the Plaintiff against the defendants jointly and severally in the following terms:
(1) The Defendants (i.e the Appellants) shall jointly and severally pay to the plaintiff the sum of Two Million naira only being damages for assault and battery which they meted on him on the 7th of September 2007.
(2) The Defendants (i.e the Appellants) shall jointly and severally pay to the plaintiff the sum of One Million Five Hundred Thousand Naira only (N1,500,000.00) being damages for false imprisonment which they meted out on him on the 7th and 8th of September 2007.
The Appellants who were dissatisfied with the Judgment of the Lower Court now appealed to this court.
The Learned Counsel for the Appellants formulated three (3) issues for the determination of the appeal. The issues are set out as follows:-
“(1) Whether or not the Judgment of the trial court delivered in chambers is and therefore unconstitutional and delivered without jurisdiction.
(2) Whether or not the Learned trial judge has breached the rules of fair hearing of the Appellants when he refused to hear the written final address and the witnesses of the Appellants by proceeding to deliver judgment.
(3) Whether or not non payment of filing fees by the Respondent/Plaintiff robs the trial court of its jurisdiction to grant the reliefs sought by the Respondent.”
(Issue 1 relates to ground 1, Issue 2 relates to ground 2 while Issue 3 relates to grounds 3 and 4 of the grounds of Appeal).”
The Learned Counsel for the Respondent on his own part formulated three issues for the determination of the Appeal. The issues are set out as follows:-
“(1) Whether or not the Judgment of the trial High Court was delivered without jurisdiction (Distilled from Ground 1 of the grounds of Appeal).
(2) Whether or not the Appellants were not afforded fair hearing by the trial High Court (Distilled from Ground 2 of the grounds of Appeal.)
(3) Whether or not the trial High Court was derobed of jurisdiction to hear and determine the suit on grounds that the Appellants alleged non-payment of filing fees by the Respondent. (Distilled from Grounds 3 & 4 of the Grounds of Appeal).”
At the hearing of the Appeal, Learned counsel for the Appellants referred to the Appellants’ brief of argument filed on 28/11/2013 which was deemed properly filed and served on 27/1/2014. He adopted the said brief as his argument in urging that this appeal be allowed.
The Learned Counsel for the Respondent in his own case also referred to the Respondent’s brief of argument. He adopted the Respondent’s brief as his argument in urging that this appeal be dismissed.
I have carefully examined the issues formulated for the determination of this appeal by counsel for the parties, the issues are similar, however it is my view that the issues formulated on behalf of the Appellants are relevant and apt for the determination of this appeal. I will therefore rely on the said issues in the determination of the appeal.
Issue No. 1
“Whether or not the Judgment of the trial court delivered in chambers is and therefore unconstitutional and delivered without jurisdiction.”
The Learned Counsel for the Appellants submitted that the trial court has no jurisdiction to conduct the proceedings of the 21st March 2013 in Chambers instead of Open Court as required under Section 36 (3) of the 1999 Constitution of Nigeria.
He relied on the case of:-
– Alhaji Marufu Salawu & others Vs. Denis Adza (1997) 11 NWLR Part 527 ratio 1 at page 21 paragraphs D-E.
He therefore urged that this issue be resolved in favour of the Appellants.
The Learned Counsel for the Respondent submitted that there is nothing in the proceedings of 21st March 2013 which showed that the proceedings were conducted in Chambers. He referred to Section 36 (3) of the 1999 Constitution.
Learned counsel for the Respondent also relied on Order 48 (1) and (2) of the Gongola State High Court (Civil Procedure) Rules 1987 as amended applicable to Adamawa State.
He argued that Order 48 (1) of the 1987 Rules of the High Court (Supra) provides thus:-
“Subject to the provisions of the High Court Law Cap 49 Laws of Northern Nigeria 1963 the court may at its discretion appoint any day or days and any place or places from time to time for hearing of actions as circumstances require.”
And he argued further that Order 48 (2) (Supra) stipulated that sitting of the court “shall be in public”. It further provides that:-
“……………………….subject to the provisions of the constitution of the Federal Republic of Nigeria the court may, for special reasons hear any action in the presence only of the parties, with their Legal Practitioner (if any) and the officers of court.”
Learned Counsel for the Respondent submitted that by the combined effect of the provisions of Order 48(1) & (2) of the 1987 Rules of the High Court, the court may at its discretion appoint any place for the hearing of an action as circumstances require and may for special reasons hear any particular action in the presence only of parties with their legal practitioners (if any) and the officers of the court.
He went further in his submissions that the words used in Section 36 (3) of the 1999 Constitution is “in public” and that nowhere in the section are words “Open Court” reflected.
Learned Counsel also submitted that in the Construction or interpretation of the Constitution or statute where the words are plain clear and unambiguous, effect should be given to them in their ordinary and actual meaning. He relied on the case of:-
– ADH LTD VS. AT LTD (2007) 10 MJSC Page 49 at 54-55 ratios 1 and 8.
It was also submitted on behalf of the Respondent that having regard to the provisions of Section 36 (3) of the 1999 Constitution read in conjunction with the provisions of Order 48 Rules 1 and 2 of the 1987 Rules of the High Court, wherever a court (or Tribunal) causes a case slated on its cause list to be called and the parties present attest to their presence and the court is informed by its officials of those parties absent and counsel to the parties announce appearance for the respective parties and the court proceeds with the matter at hand then such proceedings are “in public”.
He urged that this issue be resolved against the Appellants.
A careful perusal of submissions of counsel for the parties in this appeal revealed that while counsel for the Appellants categorically nailed the issue on the head by submitting that the trial judge conducted the proceedings of 21st March 2013 in Chambers instead of in public as required under Section 36 (3) of the 1999 Constitution of the Federal Republic of Nigeria, the Learned Counsel for the Respondent found it difficult to say categorically that the court did not sit in chambers, he only tried to distinguish between sitting “in public” and sitting “in open court.”
It is my view that counsel appearing in any case are Ministers in the temple of Justice and they must know and acknowledge that their duties at all times are first and foremost to the court and they must place their cards on the table for everybody to see instead of trying to hide behind a finger.
In this appeal under consideration, Learned counsel for the Respondent went behind the back door to explain that once Section 36 (3) of the 1999 Constitution is read in conjunction with the provisions of Order 48 (1) and (2) of the 1987 Rules of the High Court (Supra) the subsequent proceedings are deemed to be “in public.”
The Learned Counsel for the Respondent failed to state categorically that the proceedings of 21st March 2013 was not conducted in chambers of the Learned trial Judge.
Consequent upon the foregoing, I am of the firm view that the proceedings of the trial court conducted on the 21st March 2013 was in the chambers of the Learned trial Judge and not in public as required by Section 36(3) of the Constitution.
The pertinent question at this juncture is what is the effect of Judgment delivered in chambers by the learned trial Judge?
Under Section 36 (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) “the proceedings of a court or the proceedings of any tribunal relating to the matters mentioned in subsection (1) of this section (including the announcement of the decisions of the court or tribunal shall be held in public.
In SALAWU & OTHERS VS. DENIS ADZA (SUPRA) PAGE 21 PARAGRAPH D-E. It was held among others that “A Judge’s chambers no matter how decent or compact it may be cannot take the position of open court. The general rule is that a court has no power to hear a case in private, even with the consent of the parties. A Judges Chambers cannot be described as an open court which the public normally have access, therefore a ruling or judgment which are extension and part of the proceedings of court delivered in chambers cannot be said to have been delivered in public. It does not matter whether the reading in the chambers occasion a miscarriage of Justice to any of the parties or not.”
See the following cases:-
– Nigeria Arab Bank Vs. Barri Engineering Ltd (1985) 8 NWLR Part 413 Page 257.
– Alhaji B.G.B Nuhu Vs. Alhaji I.A Ogele (2003) 18 NWLR Part 852 Page 251.
In my humble view, the delivery of Judgment in chambers offends the fundamental requirement of the Constitution and therefore goes to the root of the entire proceedings and this had rendered the Judgment and all the proceedings conducted before the Judgment a nullity.
Therefore I am in total agreement with the submission of Learned Counsel for the appellants that the trial court has no jurisdiction to conduct the proceedings of the 21st March 2013 in chambers instead of public /open Court as required under section 36 (3) of the 1999 constitution of the Federal Republic of Nigeria (as amended).
This issue No 1 is therefore resolved in favour of the Appellants against the Respondent.
ISSUE No. 2
“Whether or not the Learned trial Judge has breached the rules of fair hearing of the Appellants when he refused to hear the written final address and the witnesses of the Appellants by proceeding to deliver judgment”
The Learned Counsel for the Appellants stated that on the 21st March 2013, the written final address of the defendants was pending before the trial court but that the learned trial Judge proceeded to deliver his judgment ignoring/refusing the Appellants’ counsel particularly on the issue of jurisdiction raised in the written final address of the Appellants/Defendants.
He submitted that the Learned trial Judge breached the rules of fair hearing when he ignored the written Address of the Appellants.
He relied on the following cases:-
– Akabogu Vs. Akabogu (2003) 9 NWLR Part 826 Page 445.
– Mobil Producing Nigeria Unlimited & another Vs Chief S. Monokpo (2004) All FWLR Part 195 Page 575 at 628.
It was also submitted on behalf of the Appellants that the right to fair hearing is a Constitutional right enshrined in Section 36 of the 1999 Constitution. The right cannot be waived or statutorily taken away.
The Learned counsel for the Respondent in his response submitted that there was no breach of the rules of fair hearing by the trial Judge. He stated that the trial High Court was of the considered view that ample opportunity had been given to the Appellants to call evidence in their defence but that they had neglected to utilize the opportunity.
He relied on – Nwankudu Vs. Ibeto (2011) 2 NWLR Part 1231 Page 209 at 213.
It was also stated that the motion filed on 21/3/2013 which Learned counsel for the Appellants referred to was not served on counsel for the Respondent. Learned counsel for the Respondent therefore submitted that as at the time the judgment was delivered there was no pending motion before the court.
He relied on:-
– Adeleke Vs. Agbonda (2007) 1 MJSC Page 160 at 178-179 (Per Kalgo JSC) and at 190-191 (Per Tabai JSC).
He therefore urged that this Issue 2 be resolved against the Appellants.
It was alleged on behalf of the Appellants, that the written final address of the Appellants was pending when learned trial Judge proceeded to deliver Judgment in the case. But the Learned counsel for the Respondent stated that as at the time the judgment of the Lower Court was delivered there was no pending motion before the court.
In order to get to the root of the matter, it would be necessary to examine critically the proceedings of 21/3/2013 before the trial court.
On the 21st of March 2013, the excerpts from part of the court proceedings of that day is hereby reproduced as follows:-
(Pages 105 to 106 of the Record of Appeal).
“NADRO: We have filed a motion on notice dated the 21st March 2013 for an order seeking leave of the Honourable Court to allow the defendants call their witness to be heard in their defence, for an order seeking leave of the Hon. Court to hear the defendant’s witnesses in the interest of fair hearing and to enable the defendant’s counsel to file final address, and for such other order(s).
SAWA: In the first place, we have not been served with the motion as introduced by the Learned S. P. Nadro Esq for the defendants, there is no prayer seeking to arrest the Judgment of this court slated for today. In the instance we urge the court to refuse to allow him move the motion and to proceed to Judgment as slated for today.
COURT: After introduction to the motion dated the 21st of March 2012 by the Learned S.P. Nadro Esq for the defendants and the response to same by M.B. Sawa Esq for the Plaintiff- I cannot but agree with the Learned M. B. Sawa that there is no prayer for the Judgment which is slated to be delivered today to be arrested. It is my view, the appropriate application to make —————–.
Considering all the surrounding circumstances of this case as can be seen from the records, this application cannot be anything but an attempt to slow down the course of justice which should not be tolerated.
I quite agree with M.B. Sawa Esq that the defence counsel be refused from moving the motion. It is not relevant at this stage of matter which is Judgment.
Accordingly I will proceed to deliver the judgment as slated.
SGD
HON. JUSTICE I. K. BANU
JUDGE
21/3/13”
A careful perusal of the excerpts of the proceeding of the trial court for the 21st day of March 2013 would show that the attention of the learned trial Judge was drawn to the pending motion by counsel for the defendants/Appellants.
The said motion is contained on page 43 of the Record of Appeal. Excerpts of the relevant portion is reproduced as follows:-
“TAKE NOTICE that——————
Counsel on behalf of the defendants/Applicants may be heard praying for:
(1) An order seeking leave of the Hon. Court to allow the defendants call their witnesses to be heard in their defence to the plaintiff’s claim.
(2) An order seeking leave of the Hon. Court for court to hear the defendants’ witnesses in the interest of fair hearing and to enable the defendants’ counsel file final Address.
(3) And for such———–
SGD
S. P. NADRO”
As I said earlier the Learned trial Judge was aware of the application filed on behalf of the Defendants/Appellants when he ruled that ———– I quite agree with M. B. Sawa Esq. that the defendants’ counsel be refused from moving the motion.—–.
It has been laid down in many decided cases both in this court and the Supreme Court that it is the duty of a court to entertain and decide on the merit of any application brought before it by any party notwithstanding the perceived strength or weakness of such an application. It is not only essential but it is mandatory for a court before which an application has been brought to hear and determine it appropriately. The court has no right to refuse to hear such an application, even if it is brought late and the trial court is of the opinion that the application is frivolous it has to give the applicant a hearing.
In Eriobuna Vs.Obiorah (1999) 8 NWLR Part 616 page 622 at 642. It was held among others that-
“A court of law or a tribunal has a legal duty in our adjectival law to hear any court process, including a motion before it. The process may be down right stupid, unmeritorious or even an abuse of court process. The court must hear the party or parties and rule one way or the other. A judge whether of a court of law or tribunal, has no jurisdiction to come to a conclusion by resorting to his own wisdom outside the establishment due process that a motion cannot be heard because it has no merit. That does not lie in the mouth of a judge, in our adversarial system of adjudication. The failure on the part of the Learned tribunal to hear the motion of the 1st appellant filed on 1st May 1999 is against the provisions of Section 33 of the 1979 Constitution on fair hearing and particularly the natural justice rule of audi alterem partem.”
See also the following cases:-
– Eguamwense Vs. Amaghizemwen (1986) 5 NWLR Part 41 at Page 282.
– Harrods Ltd Vs. Anifalaje (1986) 5 NWLR Part 43 at Page 603.
– Kotoye Vs. Saraki (1991) 8 NWLR Part 21 Page 638.
– Mokwe Vs. Williams (1997) 11 NWLR Part 528 Page 309.
– Okoro.Vs.Okoro (1998) NWLR Part 540 Page 65.
Also in Mobil Producing Nig Unlimited Vs. Monokpo (supra) Page 575 at 628. The Supreme Court held among others per Uwaifo JSC that:-
“A refusal of a court to hear a motion is a breach of the right to a fair hearing guaranteed under the Constitution and an essence of the audi alterem partem rule of natural justice. It is perhaps important to add that if a Judge or court were at liberty to decide to ignore any motion filed in court, it would raise a fundamental issue. There will be a danger that instead of allowing the administration of Justice to be done upon a compulsory even keel, it may be left to the tyranny of the arbitrary or selective decision of a particular Judge or court as to if and when any motion will be considered at all.”
Consequent upon the foregoing it is my view that the refusal of the Learned trial Judge to hear the application of Learned counsel for the Defendants/Appellants dated 21/3/13 to which a written final Address was attached and marked as Exhibit “A” is a breach of the Appellants’ right to fair hearing which is a fundamental Constitutional right guaranteed by the 1999 Constitution of the Federal Republic of Nigeria. The Proceedings of the trial court which resulted in the Judgment that was delivered on 21st day of March 2013 is therefore vitiated and same has been rendered null and void.
This Issue No 2 is therefore resolved in favour of the appellants and against the Respondent.
ISSUE NO. 3
“Whether or not non-payment of the filing fees by the plaintiff/Respondent robs the trial court of its jurisdiction to grant the reliefs sought by the Respondent.”
The Learned Counsel for the Appellants submitted that the initial writ of summons and the annexed writ of summons together with the Amended Statement of Claim with which the Respondent commenced the suit at the trial court are not properly before the court.
He stated that the Respondent commenced the suit at the trial court vide a writ of summons dated 18th June 2008 filed on the 16th June 2008 and a statement of claim dated 4th June 2008.
He referred to pages 3 to 9 of the record of Appeal.
He also referred to the affidavit of the Respondent dated 14th November 2013, paragraphs 3,7,8(c) and (d) where it was deposed that the Respondent’s counsel “forgot to endorse the writ” dated 18th June, 2008 and that the Statement of Claim which was filed with the writ of summons is not validly before the court. He also referred to the Respondent’s averment “that it is necessary to file a valid statement of claim hence this application.” (He referred to pages 18 and 19 of the printed record of Appeal).
The Learned Counsel for the Appellants submitted that having failed to pay the filing fee on the writ and the statement of claim dated 14th November 2008, the trial court has been robbed of the jurisdiction to entertain the claim.
He finally urged that the issue be resolved in favour of the Appellants by allowing the appeal and setting aside the Judgment of the trial court on the ground of lack of jurisdiction.
In his response, the Learned Counsel for the Respondent in his submission stated that the initial writ of summons taken out by the Respondent is contained on pages 3-5 of the Record of Appeal. But that it is manifest from the said Record that filing fees had been paid in respect of the same processes on 16th day of June 2008.
He stated that leave of court was sought to amend the said writ of summons which application was granted without objection on 22nd January 2009.
Learned Counsel for the Respondent relied on Order 26 Rules 1 to 3 of the Gongola State High Court (Civil Procedure) Rules 1987 (applicable to Adamawa State) and:
– Kode Vs. Yussuf (2001) NWLR Part 703 Page 392 at 395 ratio 3.
He finally submitted that there was a valid writ of summons duly filed by the Respondent. He relied on Akpaji Vs. Udemba (2009) 2 MJSC Page 11 at 152 ratio 1.
He finally urged that this appeal be dismissed.
It is true that once filing fee is not paid on a claim it is a fundamental defect and the court cannot entertain such a claim. Payment of filing fees is a pre-condition to or condition precedent to the court’s assumption of jurisdiction.
In the instant appeal under consideration, it is clear from the record of appeal that the Respondent had paid filing fees in respect of the said Writ of summons and Statement of Claim since the 16th June, 2008. And after the payment, the said Writ of summons was amended with the leave of the trial court and the application was granted without objection on 22nd January 2009.
In effect, it means the Respondent has regularized his position as far as the processes were concerned. The writ of summons filed by the Respondent is therefore valid.
In OKOLO VS. UBN (2004) 3 NWLR PART 855 PAGE 87 AT 108-109 THE SUPREME COURT PER TOBI JSC held among others that:-
“—-it is the responsibility of the plaintiff to inter alia pay the requisite fees in respect of each and every relief claimed as prescribed by the rules to enable the court’s judicial function to commence. A court shall not entertain a relief claimed without payment of the prescribed requisite fees unless such fees have been waived or remitted by the court or such fees are payable by any Government Department or Local Government pursuant to the provisions of the said High Court Rules of Anambra State. If the default in payment is that of the plaintiff, the claim in respect of such prescribed fees have not been paid and cannot be said to be proper before the court and should be struck out in the absence of an appropriate remedial action or application to regularize such anomaly.”
In this appeal under consideration the Respondent has paid the prescribed fees, his claim before the trial court is therefore valid.
In view of the foregoing Issue No.3 is hereby resolved in favour of the Respondent against the Appellants.
In the result, having resolved Issues 1 and 2 in favour of the Appellants and Issue 3 in favour of the Respondent, this appeal therefore succeeds in part, therefore the judgment of the Lower Court in SUIT NO: ADSY/34/08 – ALHAJI ABDULLAHI IBRAHIM MAITURARE VS ALHAJI SHEHU PETEL & 9 OTHERS delivered on 21st day of March 2013 is hereby set aside. In its place this suit is hereby remitted to the office of the Chief Judge of Adamawa State for reassignment to another judge who shall hear and determine the case on its merit without further delay.
There shall be no order as to costs.
JUMMAI HANNATU SANKEY, J.C.A.: I have had the honour to read in draft the judgment written by my learned brother, Bada, JCA, in respect of this Appeal.
I agree with him that there is merit in the arguments put forward by the Appellant.
I therefore allow the Appeal, set aside the judgment of the Adamawa State High Court, and order a re-assignment of the case for trial on its merit. I abide by the order as to costs.
Appeal is allowed.
ADAMU JAURO, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother, JIMI OLUKAYODE BADA, J.C.A. I am in complete agreement with the reasoning and conclusion contained in the judgment.
By way of modest contribution, I wish to revisit and say a word or two on the refusal of the lower Court to hear the application filed by the appellant. It is trite law, that it is the duty of a court to entertain and decide on the merit of any application brought before it by any party, notwithstanding the perceived strength or weakness of such an application. The application may be downright stupid or unmeritorious, but it must be heard. A refusal by a court to hear a motion filed in court is a breach of the applicant’s right to fair hearing guaranteed under the constitution.
The refusal of the lower Court to hear the motion is a violation of the appellant’s right to fair hearing and has occasioned a miscarriage of justice. See Newswatch Communications Limited v. Atta (2006) 12 NWLR (Pt.993) 144 at 168 – 170, Onyekuluje v. Animashaun (1996) 3 NWLR (Pt.439) 637, Mobil Producing Nigeria Unlimited & Anor v. Chief Simeon Monokpo & Ors (2003) 12 SCNJ 206 at 215, Nalsa & Team Association v. N.N.P.C. (1991) 8 NWLR (Pt.212) 652, Otapo v. Summonu (1987) 2 NWLR (Pt.58) 587, Afro Continental (Nigeria) Limited & Anor v. Co-operation Association of Professionals Incorporated (2003) 1 SCNJ 530 AT 531.
For the above and fuller reasons contained in the lead judgment which I adopt as mine, the appeal succeeds in part and is hereby allowed. The judgment of the lower Court in suit No.ADSY/34/08 delivered on 21st March, 2013 is hereby set aside. An order is hereby made remitting the case to the Hon. Chief Judge Adamawa State for re-assignment to another judge for a fresh hearing. I abide by the order as to no costs.
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Appearances
Mr. S. P. NadroFor Appellant
AND
Mr. M. E. GonoFor Respondent
