ALHAJI UMAR GHALI NA?ABA v. ATTORNEY GENERAL OF THE FEDERATION & ORS
(2010)LCN/3697(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 14th day of April, 2010
CA/A/195/2003
RATIO
APPEAL: WHAT IS THE ROLE OF A RESPONDENT IN AN APPEAL
The role of a Respondent who did not appeal or Cross Appeal nor file a Respondent’s Notice is to support the Judgment appealed against or at best refrain from attacking the Judgment. Where the Judgment is unsupportable, the appropriate thing for the Respondent to do is to cross appeal before filing a brief to attack the Judgment. See the following cases:-
– Ajomale vs. Yaduat (No.2) (1991) 5 NWLR Part 111 Page 511:
– Yongbish vs. Bulus (1997) 2 NWLR Part 489 Page 621 at 630 Paragraphs F – G Page 631 Paragraph D;
– Kwara Investment Co. Ltd vs. Garuba (2000) 10 NWLR Part 674 Page 25 at 39 Paragraphs G – H. PER JIMI OLUKAYODE BADA, J.C.A
APPEAL: WHETHER AN AGGRIEVED PARTY IS ENTITLED TO APPEAL
I agree with the submission of learned Counsel for the Appellant on this issue because having sued the Appellant in his name and Judgment having been entered against him, the Appellant was entitled to appeal as an aggrieved party. This view is fortified by the decision of the Supreme Court.
In Mobil Producing Nigeria Unlimited & 1 Other vs. Chief Simeon Monokpo & 1 Other (2004) AH FWLR Part 195 Page 575 at 647 Paragraphs E – H or (2003) 12 SCNJ Page 206 at 245 lines 5-19 wherein TOBI J.S.C opined as follows:-
“Let me take the submission of Mr. Nwosu that since there is no Us between the 1st Defendant and the Plaintiffs as there is no Judgment against the 1st Defendant, the appeal lodged by it is incompetent. My learned brother Uwaifo J.S.C has correctly examined the provisions of Section 233(5) of the Constitution vis-a-vis the 1st Defendant, I agree with him. Although the 1st and 2nd Defendants were sued jointly and severally the Judgment was clearly given against the 2nd Defendant, and not the 1st Defendant. I entirely agree with Mr. Nwosu that since Judgment was not against the 1st Defendant, it cannot lodge an appeal. This is because an appeal is lodged against a grievance arising from a Judgment, in other words, only a party who is aggrieved against a Judgment can appeal against it. Such a party is either a party in the case or a party interested in the case. While a party in the case can appeal as an Appellant qua Plaintiff or Defendant at the lower Court without satisfying the Court of any reason for filing an appeal, a party interested must prove his interest in the matter.” PER JIMI OLUKAYODE BADA, J.C.A
FAIR HEARING: EFFECT OF BREACH OF RIGHT OF FAIR HEARING OF A LITIGANT IN A PROCEEDING
The requirement of the law is that the parties should be afforded reasonable and equal opportunity to present their cases by the Court in the determination of their civil rights and obligations before a decision is taken.
Where the Court denies a litigant the right to be heard, it does so at the detriment of the validity of the proceedings.
See:-
– Okonkwo vs. Okonkwo (1998) 10 NWLR Part 571 Page 584:
– Okafor vs. A.G. Anambra State (1991) 6 NWLR Part 200 Page 659:
– Ogundoyin Adeyemi (Supra). PER JIMI OLUKAYODE BADA, J.C.A
JUSTICES
MARY U. PETER-ODILI Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
Between
ALHAJI UMAR GHALI NA?ABA Appellant(s)
AND
(1) ATTORNEY GENERAL OF THE FEDERATION
(2) THE HOUSE OF REPRESENTATIVES OF THE FEDERAL REPUBLIC OF NIGERIA
(3) THE SENATE OF THE FEDERAL REPUBLIC OF NIGERIA
(4) CHIEF ANYIM PIUS ANYIM
(SENATE PRESIDENT FEDERAL REPUBLIC OF NIGERIA) Respondent(s)
JIMI OLUKAYODE BADA, J.C.A (Delivering the Leading Judgment): This is an appeal against the Judgment of the Federal High Court, Abuja in Suit No. FHC/ABJ/CS/225/2003 between Attorney General of the Federation vs. Chief Anyim Pius Anyim Senate President Federal Republic of Nigeria and 3 Others delivered on the 26th day of May, 2003.
The Plaintiff now 1st Respondent commenced this action at the lower Court against the Defendants and raised 7 issues for determination as follows:-
“(1) Whether the Defendants’ Constitutional power under Section 58(5) of the 1979 (sic) Constitution has become exercisable when the President has neither refused nor withheld his absent under Section 58(4) of the 1999 Constitution.
(2) Whether the passage by the Senate and the House of Representatives of the Corrupt Practices and Other Related Offences Bill 2003 into law was proper and validly made while the President and the National Assembly were restrained by a Federal High Court Order of 12th March, 2003 from taking any step on the Bill.
(3) Whether or not the Bill could be said to have been sent by the National Assembly and received by the President whilst there was a Court Order restraining the Clerk of the National Assembly from taking any further steps on presenting the Bill to the President.
(4) Whether or not in the circumstances of this case the President could be said to have withheld his assent, as required by Section 58(5) of the Constitution to warrant the exercise of the National Assembly using a purported 2/3 majority of its members to pass the Bill into law.
(5) Whether or not in the circumstances, there was a 2/3 majority of the members of the Senate when 54 members were present during the mention and voting on the Bill and only 35 members voted to pass the bill into law and 16 members voted against it.
(6) Whether or not the Bill has become law considering the irregularities regarding its purported passage.
(7) Whether in view of Section 4(8) of the 1999 Constitution, the exercise of legislative powers of the Defendant is not subject to the supervisory powers of the Court.”
The Plaintiff then sought for the following reliefs:-
“(1) A Declaration that the Defendants lacked the legislative competence to pass the Bill titled ‘The Corrupt Practices and Other Related Offences Bill 2003’ into law on 7th of May, 2003 and 8th of May, 2003 respectively when the President had in no way manifested any intention to either
withhold or refuse to assent to the Bill sent to him by the Defendants.
(2) A Declaration that the passage by the Senate and the House of Representatives of the Corrupt Practices and Other Related Offences Act 2003 into law is unconstitutional, illegal, ultra-vires, invalid, void and of no legal effect whatsoever.
(3) A Declaration that the purported passage of the Private Member Bill titled ‘The Corrupt Practices and Other Related Offences Bill, 2003’ into law on 7th May, 2003 and 8th May, 2003 by the Senate and House of Representatives respectively whilst Suit No: FHC/ABJ/CS/93/2003 was pending and in spite of the Order of Court restraining the passage of the Bill is an unwarranted encroachment on the doctrine of separation of powers enshrined in the 1999 Constitution and therefore irregular, invalid, unconstitutional, void and of no effect.
(4) An Order setting aside the purported law tilted ‘The Corrupt Practices and Other Related Offences Bill 2003′ passed into law on 7th May, 2003 by the Senate and on 8th May’ 2003 by the House of Representatives.
(5) Injunction restraining the Defendants whether by themselves, their agents, servants, privies or otherwise howsoever called from entertaining, or further entertaining or in any way dealing with the issues connected with the purported bill titled ‘The Corrupt Practices and Other Related Offences Bill 2003’ passed into law on 7th May, 2003 by the Senate and on 8th May, 2003 by the House of Representatives during the pendency of the suit and in any event until the President has been able to exercise his discretion whether to assent or not.
(6) An Order of Injunction restraining the Defendants from interfering with the Corrupt Practices and Other Related Offences Act 2000 and the Independent Corrupt Practices and Other Related Offences Commission created there under pursuant to the Bill titled ‘The Corrupt Practices and Other Related Offences Bill 2003′ passed into law on 7th May, 2003 and 8th May, 2003 until the final determination of the suits pending in Court.
(7) An Order of Injunction suspending the implementation or restraining the enforcement and/or implementation of the Corrupt Practices and Other Related Offences Bill 2003 pending the full and final determination of the rights of the parties to the action.”
At the conclusion of hearing, the learned trial Chief Judge in a considered Judgment granted all the reliefs sought by the Plaintiff. The Appellant dissatisfied with the said Judgment now appealed to this Court on 6 grounds of law.
The learned Counsel for the Appellant distilled four issues for determination set out as follows:-
“(1) Whether the Appellant and other Respondents that had raised Preliminary Objection to the Jurisdiction of the Federal High Court to adjudicate over the proceedings leading to this appeal were heard or granted fair hearing, when after arguing the Preliminary Objection they were not heard again before the substantive issues in the matter was resolved against them?
(2) Whether the Preliminary Objection was correctly decided by Hon. Ukeje C. J., which was that the present proceedings were academic in nature, the offending law i.e. the Corrupt Practices and Other Related Offences Act 2003 having been set aside by the Federal High Court per Hon. Egbo-Egbo J. in a Suit FHC/ABJ/C/93/2003 involving all the parties herein.
(3) Whether the Federal High Court per Hon. Ukeje C. J. had any live issue before it as at the time it gave her decision the subject matter of this appeal and in consequence thereto whether the Court possessed jurisdiction to go into an issue that had been resolved earlier in time by a brother Judge?
(4) Whether the Judgment of Hon. Ukeje in these proceedings was in any event correct in law?”
The learned Counsel for the 1st Respondent also formulated four issues for determination set out as follows:-
“(1) Whether the parties were granted fair hearing by the lower Court?
(2) Whether the lower Court was right in the decision on the Preliminary Objection?
(3) Whether the lower Court ought not to have delivered Judgment in this case having regard to the processes before it and the ruling of the Court as to the Order of proceedings.
(4) Whether the Judgment of the lower Court was correct in law?”
The learned Counsel for the 1st and 2nd Cross-Appellants also formulated three issues for determination. The issues are set out as follows: –
“(1) Whether the Appellants that raised Preliminary Objection to the Jurisdiction of the Federal High Court to adjudicate over the matter at the Court below were given any fair hearing having regard to the fact that they were never heard on the substantive matter after they had argued some preliminary points on Jurisdiction raised by the trial Judge herself.
(2) Whether the learned trial Judge was seized of jurisdiction to decide the substantive matter having regard to the tact that the issues before her were merely academic and did not present the live controversy since the Corrupt Practices and Other Related Offences Act, 2003, sought to be voided had infact been so voided and struck down by the Federal High Court, per Hon. Justice Egbo-Egbo in Suit Number FHC/ABJ/CS/93/2003.
(3) Whether the Judgment of the lower Court in these proceedings was correct in law.”
At the hearing, the learned Counsel for the Appellant referred to the Appellant’s brief of argument filed on 2/1/04 and the Appellant’s reply brief of argument deemed filed on 20/10/05. She adopted the two briefs of argument and urged the Court to allow this appeal.
The learned Counsel for the 1st Respondent referred to the 1st Respondent’s brief of argument filed on 28/4/05. He also referred to the Preliminary Objection filed on 7/1/05. He urged that the appeal be dismissed. He also stated that the Cross Appeal is incompetent because there was no notice of Cross Appeal.
The learned Counsel for the 1st and 2nd Cross Appellants did not deny the fact that there is no notice of Cross Appeal. He however referred to the amended 1st and 2nd Cross Appellants’ brief of argument filed on 29/6/07. He urged that this appeal should be allowed and the suit before the Federal High Court be struck out in its entirety.
It is appropriate to deal with the Preliminary Objection raised by the learned Counsel for the 1st Respondent at this stage.
It should be noted that the 1st and 2nd Cross-Appellants were formerly 2nd and 4th Respondents in this appeal.
The former 3rd Respondent now 2nd Respondent was served with all Court processes earlier in the proceedings and was also served with hearing notice on 10/2/2010. But nothing was filed on behalf of the 2nd Respondent.
The 1st Respondent raised Preliminary Objection to the competence of this appeal and the 2nd and 4!h Respondent’s brief of argument and urged that the appeal be struck out.
The Grounds upon which this objection is based are as follows:-
(1) That the Appellant has lost the requisite capacity/competence to initiate this appeal at the time the Notice of Appeal was filed.
(2) There is no live issue in this appeal any longer as the outcome of same will not affect the parties in any way.
(3) The 2nd and 4th Respondents’ brief of argument is incompetent as same is urging this Honourable Court to allow the appeal without a cross appeal.
In the instant appeal the 2nd and 4th Respondents filed 2nd and 4th Respondent’s brief of argument which was later amended to read 1st and 2nd Cross Appellant’s Brief of Argument. The difference between the two briefs of argument is that the 2nd and 4th Respondents were changed to the 1st and 2nd Cross Appellants in the Amended 1st and 2nd Cross Appellant’s Brief of Argument. Apart from that, the contents of the said two briefs of argument remained substantially the same.
The common factors to the two briefs of argument are that both briefs urged that this appeal be allowed and there is no notice of cross appeal. I said earlier in this Judgment that at the hearing, the learned Counsel for the 1st and 2nd Cross Appellants did not deny the fact that there is no notice of Cross Appeal in this matter.
It should be noted that the 2nd and 4th Respondents who metamorphosed into 1st and 2nd Cross Appellants not having appealed against the Judgment of the lower Court cannot attack the Judgment in their Respondent’s brief of argument or the Cross Appellant’s brief of argument as they sought to do.
The purpose of Respondent’s brief is to answer all the points raised in the Appellant’s brief and nothing more. It is only if there is a Cross Appeal that the Cross Appellant can attack the Judgment appealed against. The role of a Respondent who did not appeal or Cross Appeal nor file a Respondent’s Notice is to support the Judgment appealed against or at best refrain from attacking the Judgment. Where the Judgment is unsupportable, the appropriate thing for the Respondent to do is to cross appeal before filing a brief to attack the Judgment. See the following cases:-
– Ajomale vs. Yaduat (No.2) (1991) 5 NWLR Part 111 Page 511:
– Yongbish vs. Bulus (1997) 2 NWLR Part 489 Page 621 at 630 Paragraphs F – G Page 631 Paragraph D;
– Kwara Investment Co. Ltd vs. Garuba (2000) 10 NWLR Part 674 Page 25 at 39 Paragraphs G – H.
That being the position, it is my view that the 1st and 2nd Cross Appellants’ brief of argument does not have any foundation upon which it could stand because in the absence of a Notice of Cross Appeal there cannot be Cross Appellant’s brief of argument.
In the circumstance, the 2nd and 4th Respondent’s brief of argument now amended to read Amended 1st and 2nd Cross Appellant’s Brief of Argument is incompetent and it is hereby struck out.
The 1st Respondent also urged that this appeal be struck out in view of the fact that the Appellant has lost the requisite capacity/competence to initiate this appeal at the time the Notice of Appeal was filed and also that there is no live issue in this appeal any longer as the outcome of same will not affect the parties in anyway. In his own response, the learned Council for the Appellant submitted that the party sued as 2nd Defendant is Alhaji Umar Ghali Na’aba in his personal capacity, the addition of his office in parenthesis or brackets was merely a description of the office he occupied at that material time. He submitted further that since the office of Speaker of House of Representatives is a creature of the Constitution, it was suable as of right.
I agree with the submission of learned Counsel for the Appellant on this issue because having sued the Appellant in his name and Judgment having been entered against him, the Appellant was entitled to appeal as an aggrieved party. This view is fortified by the decision of the Supreme Court.
In Mobil Producing Nigeria Unlimited & 1 Other vs. Chief Simeon Monokpo & 1 Other (2004) AH FWLR Part 195 Page 575 at 647 Paragraphs E – H or (2003) 12 SCNJ Page 206 at 245 lines 5-19 wherein TOBI J.S.C opined as follows:-
10
“Let me take the submission of Mr. Nwosu that since there is no Us between the 1st Defendant and the Plaintiffs as there is no Judgment against the 1st Defendant, the appeal lodged by it is incompetent. My learned brother Uwaifo J.S.C has correctly examined the provisions of Section 233(5) of the Constitution vis-a-vis the 1st Defendant, I agree with him. Although the 1st and 2nd Defendants were sued jointly and severally the Judgment was clearly given against the 2nd Defendant, and not the 1st Defendant. I entirely agree with Mr. Nwosu that since Judgment was not against the 1st Defendant, it cannot lodge an appeal. This is because an appeal is lodged against a grievance arising from a Judgment, in other words, only a party who is aggrieved against a Judgment can appeal against it. Such a party is either a party in the case or a party interested in the case. While a party in the case can appeal as an Appellant qua Plaintiff or Defendant at the lower Court without satisfying the Court of any reason for filing an appeal, a party interested must prove his interest in the matter.”
It is also my view that being a party, the Appellant must be allowed to exercise his Constitutional right to appeal from a Judgment he fought in his private capacity, notwithstanding a change in his official designation.
In the circumstance, I hold that this Preliminary Objection is unmeritorious as far as the appeal is concerned and it is hereby dismissed.
I shall now proceed to deal with the Appeal on its merit. In determining this appeal, I think it will suffice to consider only the first issue formulated in the Appellant’s brief of argument because I believe that it would settle the issues in controversy between the parties.
The said issue for determination is hereby set out as follows:-
“Whether the Appellant and other Respondents that had raised Preliminary Objection to the Jurisdiction of the Federal High Court to adjudicate over the proceedings leading to this appeal were heard or granted fair hearing, when after arguing the Preliminary Objection, they were not heard again before the substantive issues in the matter was resolved against them.”
The learned Counsel for the Appellant stated that the complaint in the appeal is against the consideration of the substantive issue of the invalidation of the Corrupt Practices and Other Related Offences Act 2003 by the learned trial Chief Judge of the Federal High Court without taking into consideration the objection of the Appellant that the said Act had been set aside vis-a-vis the same parties by the same Court although by a different Judge.
It was submitted that Judgment was delivered without the Appellant being hoard on the substantive issue, and that this was a breach of the Appellant’s right to fair hearing.
He relied on the case of Ogundoyin vs. Adeyemi (2001) 7 SCNJ Page 187 at 197.
The learned Counsel for the Appellant referred to the Judgment especially page 77 of the record of appeal where the learned trial Chief Judge indicated her willingness to hear the Preliminary Objection first.
He referred to the case of Akoh vs. Abuh (1988) 3 NWLR Part 85 Page 698 at 713.
It was submitted on behalf of the Appellant that the learned trial Chief Judge did not determine the Preliminary Objection before proceeding to hear the substantive matter. He went further that nowhere in the printed record were arguments taken from the Appellant and Counsel for the Senate President on the substantive issues raised by Chief Afe Babalola SAN.
The learned Counsel for the Appellant urged that the issue be resolved in favour of the Appellant.
In his response, the learned Counsel for the 1st Respondent referred to the fact that the parties at the lower Court filed their counter affidavits to the Originating Summons. He referred to pages 50-54 and 59 – 64 of the records. He also referred to the order in which the learned Chief Judge outlined in the conduct of the proceedings. He referred to page 77 of the records.
He also stated that arguments were canvassed before the Court by all Counsel for the parties and at the end of which the Court expressly stated that the arguments had brought the Court to the end of the Originating Summons. He referred to page 92 of the records.
He stated further that what the law enjoins the Court to do is to first determine the merit or otherwise of the Preliminary Objection before determining the substantive suit.
Learned Counsel for the 1st Respondent therefore urged this Court to hold that the parties were granted fair hearing by the lower Court. The present Appellant who was the 2nd Respondent at the lower Court and the former Senate President Chief Aynim Pius Anyim who was the 1st Respondent at the lower Court had raised objection as to the Jurisdiction of the Federal High Court to adjudicate over this matter when the same Court Coram Egbo-Egbo J. had in a suit involving all parties herein had set aside the same Act of National Assembly now in issue.
The thrust of the objection was that there was nothing for the learned trial Chief Judge to decide, the offending legislation having been set aside by the same Court.
At the hearing, the learned trial Chief Judge outlined the order in which she wanted to conduct the proceedings in order to avoid any waste of time (See Page 77 of the Records).
The Preliminary Objection was to be heard first followed by the Originating Summons.
A careful perusal of the Record of appeal showed that the learned trial Chief Judge started by first hearing the Preliminary Objection. This approach was in line with the decision of the Supreme Court in the case of:-
– The State vs. Onagoruwa (1992) 2 NWLR Part 221 Page 33
where it was held among others that – When issue of Jurisdiction of the Court is raised which goes to the root of the appeal, the Jurisdiction of the Court to entertain it becomes an issue. It becomes therefore fundamental for the Court to deal with it first before deciding on the next course of action.
It was contended on behalf of the Appellant that his complaint is against the consideration of the substantive issue of the invalidation of the Corrupt Practices and Other Offences Act 2003 by the learned trial Chief Judge of the Federal High Court without taking into consideration the objection of the Appellant that the Act had been set aside vis-a-vis the same parties by the same Court although by a different Judge. Judgment was eventually delivered on the Preliminary Objection and the substantive issues together without the Appellant being heard on the said substantive suit.
The reply of learned Counsel for the 1st Respondent to the contention of the Appellant was that at the end of trial the Court expressly stated that the argument canvassed had brought the Court to the end of the Originating Summons. See page 92 of the Record.
A careful perusal of the record of appeal showed that page 77 to 84 of the Record contained the argument of the Respondents at the lower Court and, pages 85 to 91 showed the submissions of Chief Afe Babalola, SAN who appeared for the Plaintiff who is now the 1st Respondent in this appeal.
After going through the entire Record of Proceedings in this appeal, it is my view that the learned trial Chief Judge did not determine the Preliminary Objection before proceeding to hear the substantive matter. Arguments were not taken from the Appellant and Counsel for the Senate President on the issues raised by Chief Afe Babalola, SAN for the Plaintiff at the lower Court.
In the circumstance, I agree with the submissions of learned Counsel for the Appellant that this is a clear breach of the Appellant’s right to be heard as enshrined in the 1999 Constitution of the Federal Republic of Nigeria.
The requirement of the law is that the parties should be afforded reasonable and equal opportunity to present their cases by the Court in the determination of their civil rights and obligations before a decision is taken.
Where the Court denies a litigant the right to be heard, it does so at the detriment of the validity of the proceedings.
See:-
– Okonkwo vs. Okonkwo (1998) 10 NWLR Part 571 Page 584:
– Okafor vs. A.G. Anambra State (1991) 6 NWLR Part 200 Page 659:
– Ogundoyin Adeyemi (Supra).
In the instant case, the way and manner the learned trial Chief Judge went about the trial has tainted and rendered the entire proceedings relating to the substantive Originating Summons void, by not hearing the Appellant on the substantive matter before delivering Judgment when she had expressly indicated that she would hear the Preliminary Objection was a breach of the Appellant’s right to fair hearing. The lower Court therefore violated the essence of the opportunity of being heard on every dispute.
In Ogundoyin vs. Adeyemi (Supra) at Page 197, Onu J.S.C held as follows:-
“Thus, in Sheldon v. Bromfield Justices (1964) 2 Q.B. 573 at 578, It was held that the court of tribunal shall give equal treatment, opportunity and consideration to all concerned in a case. It is little wonder that this court has firmly held that when a represented party is not heard or given the opportunity of being heard in a case, the principles of natural justice are abandoned vide Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587 and Olatunbosun v. N.I.S.E.R (1988) 3 NWLR (Pt. 80) 25. Put in another way, it was as the decision of this court in Paul Unongo v. Aper Aku & 3 Ors. (1983), 2 SCNLR 332 that neither a court established by the Constitution nor the National Assembly should curtail the power of the court to ensure a fair hearing to a party within a reasonable time as enshrined in section 236 and 33(1) of 1979 Constitution (in the latter now section 36(1) of the 1999 Constitution). This right of fair hearing, it has been held in Ramoni Ariori & Ors. vs. Muraino Elemo & Ors. (1983) 1 SCNLR 15 is that, the principle of fair hearing not only demands but also dictates that the parties to a case must be heard on the case formulated by them.” See Nwokoro v. Onuma (1990) 3 NWLR (Pt. 136) 22 at 33 per Karibi-Whyte, J.S.C. For, as Nnaemeka-Agu, J.S.C plainly put in Kotoye v. C.B.N. “For the rule of fair hearing is not a technical doctrine. It is one of substance.The question is not whether injustice has been done because of lack of hearing. It is whether a party entitled to be heard before deciding had in fact been given an opportunity of hearing. Once an appellate court comes to conclusion that the party entitled to be heard before a decision was reached but was not given the opportunity of hearing the order/judgment thus entered is bound to be set aside.” See also ex parte Obinyan (1973) 12 SC.23 where this Court held that fairness is a determining factor for the applicability of the rules of natural justice that an inquiry should be given the same type of hearing. See the cases of Adigun v. The Attorney-General of Oyo State (1987) 2 NWLR (Pt 56) 197 at 718; Aladetoyinbo v. Adewumi (1990) 6 NWLR (Pt. 154) 98 at 108. See also Ceekay Traders Ltd. V. General Motors Co. Ltd. (1988) 3 NWLR (Pt. 82) 347 and Amadi v. Thomas Aplin Co. (1972) 1 All NLR 41.”
In view of the foregoing, the Judgment of the learned trial Chief Judge delivered on 26/5/2003 is hereby set aside. In its place, the Declarations sought by the Plaintiff before the lower Court are hereby struck out.
That being so, I need not go into the other issues formulated by the parties to conclude this Judgment.
In the final analysis, it is my view that there is merit in this appeal and it is allowed.
There shall be no order as to costs.
MARY U. PETER-ODILI, J.C.A.: I have had the opportunity of reading the draft judgment of my learned brother, JIMI OLUKAYODE BADA J.C.A, which decision and reasoning I agree totally with. Of vital interest is the grouse of the Appellant that he was not heard in the Court below in respect of the substantive issue before the learned trial Chief Judge proceeded to determine the suit even without the necessary consideration of the Preliminary Objection. This serious infraction is borns out of the record of proceedings and it is a situation of a grave nature since the principle of fair hearing, a right of the appellant was compromised. The resultant effect is that the defect is such as cannot be rectified since it has rendered the entire proceedings futile. The right to fair hearing is entrenched in Section 36 (1) of the 1999 Constitution. Where a party is entitled to be heard before a decision is given in a case before the court that party should be given an opportunity to be heard and present his case before the court. It is also a cardinal principle of our law that both sides in a case should be heard before the court arrives at its decision. A denial of the right of far hearing completely vitiates the whole trial.
The rule of audi alteram partem, the obligation to hear the other side or a party in a dispute is so basic and fundamental a principle of our adjudicatory system that it cannot be compromised on any ground; N.E.P.A. v. Eze (2001) 3 NWLR (pt. 710) 606; Okonkwo v. Okonkwo (1998) 10 NWLR (pt. 571) 554.
For the reason above stated and the fuller explanations of my learned brother, I too allow the appeal and set aside the judgment and orders of the Court below.
I also made no order as to costs.
ABDU ABOKI, J.C.A.: I had the privilege of reading in advance the Judgment just delivered by my learned brother, Jimi Olukayode Bada, J.C.A. I agree with him that this Appeal is meritorious and should be allowed. I also set aside the Judgment of the learned trial Judge delivered on 26/5/2003 as well as abide by the other consequential Orders made therein.
Appearances
U. N. AGOMOH with her A. S. ADEDEJIFor Appellant
AND
MR. B. J. AKOMOLAFE for the 1st Respondent with him are SIMON ONU, TUMININU FANIYI and FAITH IDOWELI, MR. E. C. DIM for the 2nd and 4th Respondents now 1st and 2nd Cross Appellants with him are MIKE ENAHORO, EBAH and NNAMDI ANIEROBI.For Respondent
