ALIYU DAN ZABORI BANBOWA v. USMAN WAKILI NARBA (2019)

ALIYU DAN ZABORI BANBOWA v. USMAN WAKILI NARBA

(2019)LCN/12953(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of March, 2019

CA/S/37/2017

JUSTICES

AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria

AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria

FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria

Between

ALIYU DAN ZABORI BANBOWA Appellant(s)

AND

USMAN WAKILI NARBA Respondent(s)

RATIO

THE FUNDAMENTAL RIGHT TO A FAIR HEARING

The right to fair hearing is a constitutional right guaranteed by Section 36 (1) of the FRN 1999 (as amended) to every person in the determination of his civil rights and obligations including any question or determination by or against any government or authority, to be fairly heard within a reasonable time by a Court or Tribunal established by law in a manner that secures its independence and impartiality. It is a fundamental right that can neither be waived nor can its breach be acquiesced. See FBN Plc. Vs TSA Ind Ltd. The right to fear hearing is not a technical concept. It is a rule of substance and embodies the Rules of Natural Justice. It is a rule of fairness to all parties and fairness is the determinant of fair hearing in every trial. This right entails not only that a party to a dispute is heard or afforded the opportunity of being heard to present his own side of the case before a decision is taken over the dispute, but also that the hearing or opportunity given must be fair. It is all about the observance of the rules of natural justice in trial proceedings to ensure attainment of justice and fairness to the parties in a case. This is why it is said that the right to fair hearing connotes a trial conducted in accordance with all the legal rules formulated to ensure that justice is done to the parties to the case. And it makes no difference whether the adjudicatory body is Judicial, quasi-judicial, Administrative or criminal panel or body. See Ariori & Ors Vs Muriano B. O. Elemo & Ors (1983) 1 SC 13, at 231.
Indeed, the true test of a fair hearing is the impression of a reasonable person who was present at the trial and watched the proceedings attentively from the beginning to the end with keen interest whether from his observation, justice has been done in the case. In the words of the great jurist, Adetokunbo Ademola (C.J.N) in the locus classicus case of Isiyaku Mohammed v. Kano Native Authority (1968) 1 All N.L.R. 42;
?a fair hearing involves a fair trial and a fair trial of a case consists of the whole hearing. We therefore, see no difference. The true test of fair hearing, it was suggested by counsel, is the impression of a reasonable person who was present at the trial, whether, from his observation justice has been done in the case.?
This test has been expanded to include that of a fair view of a dispassionate visitor to the Court who watched the entire proceedings from the beginning to the end or of an un officious by-stander or reasonable man who upon perusal of the record of proceedings would go away with the impression as to whether justice was done to the parties or not.
Paramountly, the attributes of fair hearing go beyond hearing both parties on all material issues and giving equal treatment and opportunity to both sides. It entails a consideration of the case presented by each party to the dispute. It is not enough to afford parties a hearing or an opportunity of hearing. The Court must after hearing the parties, consider and evaluate the case as presented by each party on every material issue before arriving at its conclusion on the issue. It is only when all the attributes are present in the proceedings that the parties can be said to have been given a fair hearing. See Bamgboye Vs University of Ilorin (1999) 10 NWLR (pt 622) 290, Adeyemi Vs State (2014) LPELR – 23062(SC).
A hearing cannot be said to be fair if any of the parties is refused a hearing or is denied the opportunity to be heard or even after being heard, is denied a consideration of this case. See Mil. Gov. Imo State Vs Nwauwa (1997) 2 NWLR (Pt. 490) 679. PER WAMBAI, J.C.A.

AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): The Appellant and the Respondent have been having running legal battle over the ownership of a piece of land situate at Unguwar Maiguzaye district. Twice the Respondent won and lost the battle. By the same number, the Appellant also won and lost the legal battle which began by the institution of suit No. CV/5/KWG/59/2014 on 2/6/14 at the Sharia Court Kangiwa for a declaration of title to the disputed land which the Appellant claimed he inherited from his mother. The Court decided in favour of the Respondent and the Appellant lost the battle. Angered by the loss, the Appellant appealed to the Upper Sharia Court kamba in appeal No. CV/AP/NO/06/2014 which allowed the appeal, set aside the decision of the Kangiwa Sharia Court (now called the first Court) and gave the Appellant his first victory.

?The appellant?s triumph at the Upper Sharia Court Kamba which was the Respondent?s first defeat prompted the Respondent to appeal the decision to the Sharia Court of Appeal which overturned the decision of Upper Sharia Court Kamba and restored the Respondent?s victory.

Again, the Appellant was aggrieved and ventilated his grievance against the decision of the Sharia Court of Appeal by filing appeal No. CA/S/124/S/2016 before this Court which in a judgment delivered on 8/6/2017, gave appellant his 2nd victory by over-turning the decision of the Sharia Court of Appeal on ground of absence of jurisdiction of that Court to entertain the subject matter of the appeal; ownership of title to land. The Court observed that the proper venue to lodge an appeal against the decision of the Kamba Upper Sharia Court is the High Court and not the Sharia Court of Appeal, Kebbi State.

A month after the Respondent failed to initiate an appeal at the High Court against the said judgment of the Upper Sharia Court Kamba, the Appellant applied for and was on 7/7/2017, granted an order for execution of the judgment of the Kamba Upper Sharia Court. Six months after the execution of the judgment, the Respondent by a motion No. KB/HC/M/249/2017 filed at the Kebbi State High Court (the Court below) on 20/11/2017, sought and was granted extension of time to appeal the said decision of Upper Sharia Court Kamba delivered on 19/3/2016, to the Court

below. The grant of that application which did not get down well with the Appellant, is the genesis of this appeal, the Notice of which was filed on 12/2/2018 predicated upon two grounds, namely;
GROUND 1
?The Trial Judge did not afford the appellant right to fair hearing while determining the Respondent application No. KB/HC/M.249/2017.?
GROUND 2
?The trial Judge erred in law when he granted respondent leave to appeal in application No. KB/HC/M.249/2017. Regard had been to the general principle of law in application for extension of time as stated by Supreme Court in the case of IBODO & ORS V. ENAROFIA & ORS (1980) 5-7 SC 42.?

From these grounds, the learned appellant?s counsel M. Sambo Esq., who settled the appellant?s brief of argument filed on the 12/4/2018 and deemed on the 19/11/2018, distilled two issues for determination, to wit:
(1) “Considering the process filed before this Court visa ruling of this Court whether Lower Court granted appellant right affair hearing”.
(2) Considering Exhibit “A” and “B” of the respondent application whether lower Court relied on legally

admissible evidence regard being had to provision of Section 104 of the Evidence Act, (2011).

In the respondent?s brief of argument settled by Lagalo Dan Lagalo Esq and filed on the 11/6/2018 but deemed on the 19/11/2018, a sole issue was formulated for the determination of this Court, namely;
Whether in the circumstances of the Application, the trial Court rightly exercised it discretion in granting enlargement of time for the Respondent to Appeal (Distilled from grounds 1 and 2)

I shall determine this appeal on a sole issue culled from the Appellant?s 2 issues and the Respondent?s sole issue as recast infra, to wit;
WHETHER IN THE CONSIDERATION OF THE APPLICATION, THE APPELLANT WAS AFFORDED A FAIR HEARING AND HAVING REGARDS TO THE PROCESSES BEFORE THE COURT, THE LEARNED TRIAL JUDGE PROPERLY EXERCISED HIS DISCRETION IN GRANTING THE APPLICATION.

However, before considering counsel?s submission for and against the appeal, it is apt to first consider the issue raised suo motu by this Court.

Issue raise, suo motu
At the hearing of the appeal on 19th November, 2018, this Court suo motu raised the issue

whether the Appellant required leave to appeal the said Ruling of the Court below, to this Court. Having suo motu raised the issue, parties were directed to address the Court on the issue.

In his written address on the issue, the Appellant cited and relied on the provision of Section 241 (1) (a) – (f) of the Constitution of the Federal Republic of Nigeria (as amended) to argue that ground 1 of the Notice of Appeal being an issue of fair hearing this appeal fits into the category of appeals in Section 241 (1) (d) appealable as of right. Therefore, the Appellant does not need to seek leave to appeal the decision.

In response to this argument, Respondent?s learned counsel submitted that an aggrieved litigant from the decision of the Federal High Court or High Court may approach the Court of Appeal either as of right or with leave of Court as regulated by Sections 241(1) and 242 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). He argued that except in the instances captured in Section 241 (1) (a) – (f) when appeal shall lie as of right to the Court of Appeal, in every other instance, appeal shall lie as of right to the

Court of Appeal with leave of the High Court or the Court of Appeal as provided in Section 242 (1) of said the Constitution of the Federal Republic of Nigeria 1999 (as amended) as interpreted in the case of YABA TECH V-AWONIYI (2016) LPELR – 41393 (CA).

It was his contention that the lower Court did not sit as a Court of 1st instance when it heard and granted the application the subject of this appeal, the matter having originated from the Upper Sharia Court, (USC) Kamba, thus, this appeal does not fall within Section 241 (1) (a) but under Section 242 (1) insisting that the Appellant requires leave to appeal the said ruling. He cited in support the cases ofBALAJE V YAYA (2015) LPELR 25630 (CA), SAMUEL V ETUBI (2011) LPELR – 4200 (CA).

On the consequence of failure to seek and obtain leave as required by Section 242 (1), the cases of ALLANAH & ORS V KPOLOKWU & ORS (2016) LPELR 40724 (SC) 34 – C- F and HALILU V KWANO (2014) LPELR – 24195 (CA) 13 to 15 B were cited to argue that the appeal is grossly incompetent and should be struck out. We were so urged to strike out the appeal.
?
The issue here is the necessity or otherwise of

seeking and obtaining leave of Court before filing the present appeal. The facts leading to the institution of this appeal are not in contention. Both parties are on the same page that the Court below acted in its appellate jurisdiction when it granted the Respondent enlargement of time to appeal the decision of Upper Sharia Court Kamba, the matter having sojourned from the Sharia Court Kangiwa (the 1st Court) to the Upper Sharia Court Kamba, whose decision gave rise to the application, the subject of this appeal. They are also ad idem that the Appellant has a right to appeal the said Ruling of the Court below to this Court. They however part ways on the manner of exercising that right of appeal. It is not in contention that no leave was sought and obtained before filing the appeal. Appellants? position however is that no such leave is necessary to appeal the said Ruling.
It is a mere restatement of the well settled position of law that this Court can only exercise its jurisdiction and powers to hear and determine appeals from the High Court where the Appellant duly exercises his right of appeal in accordance with the provisions of the Constitution

and the statutes conferring jurisdiction on this Court coupled with provisions of the relevant Rules.
The jurisdiction and power conferred on this Court to hear and determine appeals is statutory and is also controlled by rules of Court. The Court would lack jurisdiction to hear an appeal if Appellant fails to comply with Statutory provisions or the relevant rules of Court.
Thus where Leave is required, failure to obtain Leave is an infraction on the jurisdiction of the Court and fatal to the appeal. This is so because the leave is a condition precedent to exercise of jurisdiction by this Court. See OLATUNJI v. UNITY BANK PLC (2016) LPELR-41597(CA), CHINA GEO ENGINEERING CORPORATION NIG LTD V ISA (2007) LPELR -8954 (CA).
Therefore, an appeal from the High Court to this Court, (the Court of Appeal) which requires leave would be incompetent and invalid unless the leave is first sought and obtained. In G.N. NWAOLISAH VS. PASCHAL NWABUFOH (2011) 14 NWLR (PART 1268) 600 at 624 G H to 625A ADEKEYE JSC stated thus:
?Leave of Court where it is required is a condition precedent to the exercise of the right to appeal. This failure to obtain

leave where it is required will render any appeal filed incompetent as no jurisdiction can be conferred on the Appellate Court.”
On the fate of the appeal and what the Court must do where leave is required but not sought and obtained before filing the appeal, my lord Sanusi JSC in the case of Allanah & v kpolokwu & Ors (Supra) cited by the respondent?s counsel emphatically stated the law in this way:
?…in any situation where leave is required in filling an appeal and an appellant out rightly refuses or fails to seek and obtain such leave, he runs the risk of getting his appeal being rendered incompetent and ultimately thrown out. See UBN Plc vs. Sogunro (2006) 16 NWLR (Pt.1006) 504; Anachebe v. Ijeoma (2014) 14 NWLR (Pt.1426) 168. The consequence of failure to seek and obtain leave where the law requires an appellant to do so before filing his appeal, renders his appeal incompetent and such also deprives the Appellate Court of jurisdiction to hear it and the Court must therefore strike out that appeal for being incompetent.?
Now, the right of a litigant who is dissatisfied with the decision of the Federal

High Court or High Court to approach this Court, the Court of Appeal, is a constitutional right donated by Section 240 and regulated by Sections 241 (1) and 242 (1) of the Constitution of the Federal Republic of Nigeria (as amended) thereby creating two types of appeals; appeal as right and appeals with leave of Court. See Ikpeazu v. Otti (2016) 8 NWLR (Pt. 1513) 38, GARUBA and ORS V. OMOKHODION & ORS (2011) LPELR 1309 (SC) KEYSTONE V. OKEFE (2014) LPELR 22633 (CA).
Section 241 creates and enumerates the cases and circumstances when an appeal will lie as of right from the decisions of the Federal or State High Court to the Court of Appeal. In cases falling under Section 241 (1) (a) – (f), an aggrieved party is entitled as of right, to appeal to the Court of Appeal without the necessity to seek an order of Court to do so. See AULT & WIBORG (NIG) LTD V NIBEL INDUSTRIES LTD (2010) 16 NWLR (PT 1220) 486, NDIKA V CHIEJINA (2003) 1 NWLR (PT 802) 451 relied upon by this Court in ADUMU & ORS V THE STATE (2012) LPELR – 14242 (CA), Adetona V. Edet (2001) 3 NWLR (Pt. 699) 186.
On the other hand where the decision of the Federal or State High Court

does not fit into any of the cases or the pigeonholes created under Section 241 (1) of the Constitution, an appeal shall lie from the decisions of the High Court to the Court of Appeal with the leave of the High Court or the Court of Appeal. See FASUYI & ORS V PDP & ORS (2017) LPELR – 43462 (SC), Barr. Mohammad Bello Mustapha v Mr. Danbaba Dan Fulani Suntai (Gov. Taraba State) (2013) LPELR – 22109 (CA).
Section 241 lists six instances when an appeal will lie as of right to the Court of appeal as enumerated in paragraphs (a) to (f) of Sub-section (1)
Sub – Section (1) provides;
?An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:
For our purpose here, the relevant paragraphs that fall for interpretation are Paragraphs (a), (b) and (c). They are hereunder reproduced thus:
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) Where the ground of appeal involves questions of law alone; decisions in any civil or criminal proceedings.?

(c) ?
(d) Decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter iv of this Constitution has been, is being or is likely to be contravened in relation to any person;
(e) ?
(f)?
By the clear wordings of paragraph (a), once the decision of the High Court is a final decision in its first instance jurisdiction as opposed to an interlocutory decision, there exists a right of appeal as of right, that is, without the necessity to apply for leave to appeal. This right of appeal is a total one which a litigant can freely exercise without any hindrance irrespective of the nature of the grounds of appeal. Whether the grounds of appeal are grounds of law, or of facts or mixed law and fact, the appellant has a right of appeal as of right without recourse to either the trial Court or this Court for leave to appeal in so far as it is exercised in compliance with the statutory provisions regulating the exercise of such right.
This is so because the provisions of Sub-section (1) (a) are not qualified by the nature of the grounds on which the appeal, as of right, is to be

brought.
Similarly, by virtue of paragraph (b) which is quite distinct and should be read disjunctively from paragraph (a), there is also a right of appeal as of right from the decisions of the Federal or State High Court in any civil or criminal proceedings where the ground or grounds of appeal involve or involves questions of law alone. Thus, by virtue of Section 241 (1) (b) an appeal shall also lie from the decision of a High Court, Federal or State, in any civil or criminal proceedings, as of right without the need to seek or obtain leave or the prior permission from the trial or appellate Court to do so provided that the ground/ground(s) of the appeal involves/involve question(s) or issue(s) of law alone. See AQUA LTD V ONDO STATE SPORTS COUNCIL (SUPRA). Adetona V. Edet (2001) 3 NWLR (Pt. 699) 186.
While paragraph (a) of Section 241(1) specifically provides for an appeal against the final decision of the High Court, Federal or State, in any civil or criminal proceedings in its first instance jurisdiction, paragraph (b) provides for a right of appeal as of right from the decision of the said Court to the Court of Appeal where the ground/grounds

involve/involves question/questions of law alone. This includes final decisions of the High Court when not sitting as a Court of first instance but in its appellate jurisdiction, when it sits over appeals from subordinate Courts, otherwise referred to as double appeal. The only condition is that the ground of appeal raises question/questions of law alone. See AQUA LTD V ONDO STATE SPORTS COUNCIL (1988)4 NWLR (91) 622, RABIU V KANO STATE (1980) LPELR -2936 (SC), OGBIMI V NIGER CONST CO LTD (2006) 9 NWLR (PT. 986) 373, NWAOLISAH V. NWABUFOH (2011) LPELR -2115 (SC).
Instructively, under Sub-paragraph (b), where the ground of appeal involves questions/issues of law alone, the nature of the decision by a High Court against which the right of appeal is provided, is immaterial. What is relevant is whether or not the ground(s) of appeal involves/involve question(s) of law alone. Put differently, it is the nature of the grounds rather than the nature of the decision that determines whether or not the right of appeal exists as of right under the provisions of Section 242 (1) (b). If the ground of appeal raises questions of law alone whether the decision of

the High Court appealed against was handed down as a first instant or appellate Court, the right of appeal as of right inures an appellant as in the case of paragraph (a) without any need to seek permission or leave of Court to exercise the right. See OGBIMI V. NIGER CONST CO LTD (Supra), NWAOLISAH V. NWABUFOH (Supra).
In the same vein, by paragraph (d), where the issue or the ground of appeal relates to or touches on a violation of any of the provisions of Chapter iv of the Constitution, an appeal shall lie as of right to the Court of Appeal without the necessity to apply for leave of either the lower Court or of the Court of Appeal. See Loveleen Industries Ltd. v. Komolafe (2012) 14 NWLR (pt.1375) 542 at 266.
In the instant appeal, Ground 1 of the notice of Appeal shun its particulars reads:
?The trial judge did not afford the appellant right to fair hearing while determining the respondent application No. KB/HC/M/249/2017.?
This ground complains of denial of fair hearing. It is a complaint that in the process of determining the application, the learned trial judge relied on an exhibit which was not attached to the affidavit,

in arriving at his decision. The complaint is that the appellant?s right to fair hearing was breached in the course of trial. This ground of appeal which complains of violation of the appellant?s fundamental human right to fair hearing requires no leave of Court to file. While interpreting the same paragraph (d), this Court in the case of OGWEH V. FRN (2015) LPELR- 25784(CA) speaking through Ogunwumiju JCA held inter alia as follows:
?In this case, the complaint is that during the course of the trial, the fundamental human right of the Appellant to a fair trial was being contravened by the order of the learned trial judge to abridge the cross examination of the leading witness for the prosecution. In the circumstances, I am of the humble view that there was no need for leave to be first sought and obtained before an appeal can be filed on the issue of the violation of the human rights of a person. That head of objection is overruled.?
Additionally, this ground of appeal has been interpreted to be a ground of law simpliciter which by paragraph (b) also requires no leave of Court to file. In CORPORAL LIVINUS UGWU v. THE STATE

(2013) LPELR-20177(SC) the apex Court stated the law thus:
“This issue complains about the procedure employed in preferring the charge against the appellant. That the leave of the High Court was not sought or properly sought to prefer the charge, hence the complaint in the ground was of breach of the appellant?s right to fair hearing. This is a ground of law alone which needs no leave of Court to be filed under S. 233(1) of the 1999 Constitution; Nwadike Vs. Ibekwe (1987) 4 NWLR (Pt.67) 718 at 744-745; General Electric Co. Vs Akande & Ors (2010) 18 NWLR (Pt.1225) 596; (2010) 12 (R.2) SCM 96.” Per OLUKAYODE ARIWOOLA, J.S.C ( P 20, paras. D-F)
Similarly, this Court in the case of PRIVATE NETWORKS (NIG) LTD v. VISA INVESTMENT & SECURITIES LTD (2016) LPELR-41486(CA) while holding that a complaint of denial of fair hearing is an issue of law, relied on the case of Loveleen Industries Ltd. v. Komolafe (2012) 14 NWLR (pt.1375) 542 at 266 where the Supreme Court treated a complaint of denial of fair hearing as a ground of law, alone not requiring the leave of the Court to file.
From the foregoing, it is crystal clear that either as a ground

of law simpliciter under paragraph (b) or as a ground or issue of breach of appellant?s right to fair hearing in contravention of Chapter iv of the Constitution under paragraph (d) of Section 241(1), the Appellant who complains of denial of fair hearing in the course of the determination of the application by the lower Court, requires no leave of Court to appeal the said ruling. The cases of YABATECH V AWONIYI (SUPRA), SAMUEL V ETUBI (SUPRA), and ALLANAH V KPOLOKWU (SUPRA) relied upon by the learned respondent?s counsel which essentially interpreted Section 241 (1)(a) and 242 (1) and the effect of failure to seek and obtain leave where required, do not apply to the facts and circumstances of this appeal. On this score, I hold that the notice of appeal initiating this appeal was validly filed and the appeal is competent.

This hurdle having been successfully crossed paving the way for the determination of the merits of the appeal, this appeal shall be determined on a sole issue culled from the appellant?s two issues and the respondent?s sole issue as recast infra to wit:
WHETHER IN THE CONSIDERATION OF THE APPLICATION, THE

APPELLANT WAS AFFORDED A FAIR HEARING AND HAVING REGARDS TO THE PROCESSES BEFORE THE COURT, THE LEARNED TRIAL JUDGE PROPERLY EXERCISED HIS DISCRETION IN GRANTING THE APPLICATION.

Arguing the appeal, it was submitted for the Appellant that the learned trial Judge did not afford the appellant the right of fair hearing while determining the respondent?s application in that firstly, the trial judge relied on Exhibit A1 which was neither deposed to nor annexed to the respondent?s application though the law is that parties are bound by their pleadings and the Court cannot rely on a document that is not before it. He cited the case of Phillips V. E.O.C & Ind. Co Ltd suit NO. SC 91/1999 2013 I NWLR P. 618, secondly, that the learned trial judge did not refer to the appellant?s counter affidavit particularly paragraphs 4 (e) and( p) in the consideration of the application thereby denying the Appellant the right of fair hearing.

Furthermore, it was submitted that the Exhibit A (record of proceedings of both Sharia Court Kangiwa in suit CV/FI/KGW/59/14 and record of proceeding of Upper Sharia Court Kamba in Suit No. CV/AP/NO/06/2014)

relied upon by the respondent are inadmissible documents in law upon which no legal right can be found being public documents relied upon in contravention of Section 104 (1) and (2) of the Evidence Act having not been properly certified the name and official title of the officer being absent citing in support the case of Sterling Geotechnical (Nig) Ltd V. Galamas International Ltd (2010) 4 NWLR (Pt 1184) 361 at 379 Paras F-G per Bulkachuwa JCA (as he then was).

On the merit of the application itself, it was submitted that the application the facts deposed in the affidavit in support of the application did not meet the necessary conditions for the grant of the application as set out in the cases of Williams V. Hope Rissing voluntary Fund Society (1982) 1 All NLR I) Ibodo V. Enarofia (19880) 5-7 Sc 42 and Minister of Petroleum and Minerals Resources V. Expo Shipping Nigeria Ltd (2010) 12 NWLR (Pt 1208) 261 at 281, namely that the applicant must;
(a) Show good and substantial reason for his failure to appeal within time and
(b) Ground of appeal which prima facie, shows good cause why the appeal should be heard, both of which conditions must

co-exist.

It was submitted that the only reasons stated at paragraphs 5 (e) and 6 for failure to appeal within time are not substantial.
We were urged to allow the appeal.

In response to the foregoing, it was submitted for the Respondent that Order 44 Rule 4 of the Kebbi State High Court (Civil Procedure) Rules, 2017 vests discretion in the lower Court to extend time for the doing of any act without stipulating any corresponding twin conditions as placed on this Court by Order 3 Rule 4 (2) of the Rules of this Court.

While conceding that Order 3 Rule 4 (2) of the Rules of this Court is good law, it was submitted that the Respondent met those conditions by the depositions in paragraph 6 of the affidavit to the effect that the reason for the delay in filing the Appeal was not deliberate but is because the Respondent was misled by the order of the Upper Sharia Court Kamba that a dissatisfied party could appeal to the Sharia Court of Appeal. That by the time the appeal was concluded at the Sharia Court of Appeal, the Respondent was already out of time to appeal at the Appellate forum of the lower Court. He argued that by the stated reason for

the delay and the grounds of appeal at pages 95 – 96 of the record, the Respondent placed sufficient materials before the lower Court to warrant the exercise of the discretion in his favour.

This appeal, it was contended, being an invitation to this Court to vet the exercise of the judicial discretion by the lower Court in granting the extension of time to the Respondent to exercise his constitutional right of appeal, this Court cannot question the exercise of the discretion and should decline to interfere except it is manifestly shown, and it has not been shown, that the discretion was ill exercised and occasioned a miscarriage of justice. That the lower Court having correctly exercised its discretion in favour of the appellant, the appellant?s constitutional right cannot be settled on the utter of technically but on substantial justice. The cases of NDAYAKO & ORS V Dantoro & ORS (2004) LPELR – 1968 (SC) 32, paras A – B, ENYIBROS FOODS PROCESSING CO. LTD & ANOR V NDIC (2007) LPELR – 1149 (SC) page 42 A – D.

On the appellants? claim of denial of fair hearing on the ground that the trial judge did not consider the

appellant?s counter-affidavit, it was submitted that the contention shows lack of appreciation of the applicable law to the facts and circumstances of the appeal and is not reflective of the record of appeal before this Court. Reference was made to pages 145 lines 28 – 29 and 146 lines 1 – 6 of the record where the judge made reference to the counter-affidavit.

On the argument that the record of proceedings of the Sharia Court Kangiwa and the Upper Sharia Court Kamba sought to be appealed against are inadmissible in evidence being public documents which have not been properly certified, it was submitted that the argument is misconceived in that the issue of admissibility of those documents which form part of the affidavit evidence does not arise at that stage until the stage of hearing and they cannot be objected to at this stage on ground of non-certification. The cases ofEZECHUKWU & ANOR V I.O.C. Onwuka (2016) – LPELR 26055 (SC) pages 36 -37 F – G, Olutayo v F.U.T MINNA (2007) LPELR – 11846 (CA) PP 34 -35 – E – A were cited in support.
?
Moreover, counsel argued, the certification or non-certification of the documents cannot detract from the

fact that parties are in agreement of the existence of such record of proceedings of both Courts. We were urged to resolve the issue in favour of the Respondent.

The appellant?s main contention in this appeal is that of denial of fair hearing and reliance by the learned trial judge on unannexed exhibits and inadmissible documents in arriving at his decision in granting the Respondent extension of time to appeal the decision of Upper Sharia Court Kamba.

Now, the discretionary power to extend time for the doing of any act or the taking of any step is vested on the lower Court by Order 44 Rule 4 of its Rules, the Kebbi State High Court (Civil Procedure) Rules, 2017. By it, the judge may as often as he deems fit and either before or after the expiration of the time appointed by the Rules or by any judgment or order of Court, extend or adjourn the time for doing any act or taking any proceedings.
Every discretionary power must be exercised having regards to the facts and circumstances of each case and guided by the established principles of law. It must always be borne in mind that in considering an application for extension of time within which

to do certain things or to take certain procedural steps, the Court must bear in mind that the Rules of Court must prima facie be obeyed. Therefore, to justify the grant of the application, there must be placed by the applicant, before the Court, some materials upon which to base the exercise of the discretion without which the discretion cannot be judicially and judiciously exercised. To exercise the discretion in the absence of any cogent materials before the Court could only afford the party in breach of the Rules, the uninhibited right to extension of time and make a nonsense of the provisions of the Rules of Court on the proper time within which to take the procedural steps set out in the Rules. The Court must therefore be guided by the principles set out in the locus classicus case of WILLIAMS & ORS V HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1 ALL NLR (Pt 1).
There must be (1) good and substantial reasons for the delay and (2) a Notice of appeal which must prima facie show cause why the appeal should be heard.
These twin conditions must be met by the applicant. See NWORA V NWABUEZE (2011) 6 SCNJ 437, 456, OGUNDIMU V KABUNMU (2006) 8

MJSC 19.
Therefore, in the exercise of its discretion to extend time for the filing of the appeal, the Applicant having lost the right to do so within the stipulated time, the Court must always consider the depositions in the supporting affidavit alongside those in the counter-affidavit to determine whether from the two affidavits, good and substantial reasons exist to warrant the exercise of its discretion in favour of or against the applicant. See NYAKO V NWABUEZE (2011) 6 SCNJ 440 TOTAL INT. LTD V AWOGBORO (1994)4 NWLR (Pt 337) 147.
To fulfil the 1st condition, the application must be supported with an affidavit which must contain sufficient and cogent reasons explaining the delay in filing the appeal within the statutorily prescribed time. The depositions in the applicant?s affidavit must explain why the applicant could not appeal within the time allowed by law and also the reason why the application could not or was not filed after the expiration of the statutorily allowed period earlier than the time it was filed by the appellant. See ENYIBROS FOODS PROCESSING CO. LTD & ANOR V NDIC (2007) LPELR 1149 (SC).

Respondent?s counsel has referred to paragraphs 3 (c), (d) and (f) which according to him set out the good and substantial reasons for the delay in filing the Notice of appeal at the lower Court. The germane paras are 3 (d), (e), (f) and 6 hereunder reproduced.
3. (d) That the Respondent further appealed against the judgment of the Sharia Court of Appeal to the Court of Appeal, Sokoto Division in appeal no. CA/S/124s/2016 and in a well-considered judgment delivered on the 8th day of June, 2017 the appeal of the Respondent was allowed by the Court of Appeal and the judgment of the Sharia Court of Appeal delivered on the 7th April, 2016 was set aside on the ground that the later Court lacks jurisdiction to entertain a case of declaration of title to land.
(e) That throughout the trial of the case from Sharia Court Kangiwa to Court of Appeal, Sokoto Division the Appellant/Applicant was not represented by Counsel.
(f) That as at the time the Court of Appeal, Sokoto Division set aside the judgment of the Sharia Court of Appeal which determined the appeal against the judgment of the Upper Sharia Court Kamba, the Appellant/Applicant was already out of time to

appeal against the judgment of the Upper Sharia Court Kamba to the High Court of Kebbi State which is the appropriate Court to entertain the appeal against the judgment of the Upper Sharia Court Kamba in the case of declaration of title to land.
6. That the Appellant/Applicant was misled by the Order of the Upper Sharia Court Kamba to appeal to the Sharia Court of Appeal within 30 days and the failure to file the Appeal to the Kebbi State High Court of Justice within the time allowed was not deliberate.

Based on these depositions, it was submitted that the applicant was able to show substantial reasons for the delay in filing the Notice of appeal at the proper venue, the Court below, within the prescribed time and together with the Notice of appeal, satisfied the two conditions.
?
Contrarily, the appellant?s counsel relying on the appellant?s counter-affidavit argued that the reasons stated in the affidavit in support of the application having been countered, there was no cogent reason for the delay in filing the appeal that would warrant the grant of the application for enlargement of time for the Respondent to appeal the decision of

the Upper Sharia Court Kamba, more than two years, out of time.

In particular, appellant?s counsel contends that the two reasons stated in paragraph 3 (e) & 6 of the affidavit were countered by paras 4 (e) and (p) of the counter-affidavit but were not considered by the lower Court in breach of his right to fair hearing. The said paras 4 (e) and (p) read thus: –
e. In further denial to paragraph 3 (E) of applicant affidavit in support respondent state that, applicant before upper Sharia Court Kamba assigned Barrister Haruna Ubandawaki as his counsel who prosecute his case, both Hausa and English transplanted copy of upper Sharia Court Kamba in Appeal NO. CV/AP/NO/06/2014 is here to annex as Exhibits A & A1.
p. In further denial to paragraph 6 of applicant affidavit in support respondent state that, applicant engaged the service of Barr. Haruna Ubandawaki who prosecute Appeal No. KBS/SCA/KMB/04/2015 as such counsel is presumed to know the law whether Court has jurisdiction or not.
The lower Court in its short ruling at page 146 held as follows:
?The Court will only accede to this enlargement of time on disclosure of

good and substantial reason, why the time specified within which to appeal has not been adhered to. See the case of Williams Vs Hope Rising Voluntary Fund Society (1982) 1 ALL NLRI Ibodo Vs Enarofia (1980) 5 – 7 S.C 42. The affidavit in support was in line with the Principle in cases cited above and that the Applicant grounds of appeal are substantial and arguable.?

From the terse ruling above there can be no argument that the lower Court gave no consideration to the appellant?s counter-affidavit before arriving at the conclusion that the affidavit in support was in line with the principle in the cited cases.
The right to fair hearing is a constitutional right guaranteed by Section 36 (1) of the FRN 1999 (as amended) to every person in the determination of his civil rights and obligations including any question or determination by or against any government or authority, to be fairly heard within a reasonable time by a Court or Tribunal established by law in a manner that secures its independence and impartiality. It is a fundamental right that can neither be waived nor can its breach be acquiesced. See FBN Plc. Vs TSA Ind Ltd.

The right to fear hearing is not a technical concept. It is a rule of substance and embodies the Rules of Natural Justice. It is a rule of fairness to all parties and fairness is the determinant of fair hearing in every trial. This right entails not only that a party to a dispute is heard or afforded the opportunity of being heard to present his own side of the case before a decision is taken over the dispute, but also that the hearing or opportunity given must be fair. It is all about the observance of the rules of natural justice in trial proceedings to ensure attainment of justice and fairness to the parties in a case. This is why it is said that the right to fair hearing connotes a trial conducted in accordance with all the legal rules formulated to ensure that justice is done to the parties to the case. And it makes no difference whether the adjudicatory body is Judicial, quasi-judicial, Administrative or criminal panel or body. See Ariori & Ors Vs Muriano B. O. Elemo & Ors (1983) 1 SC 13, at 231.
Indeed, the true test of a fair hearing is the impression of a reasonable person who was present at the trial and watched the proceedings

attentively from the beginning to the end with keen interest whether from his observation, justice has been done in the case. In the words of the great jurist, Adetokunbo Ademola (C.J.N) in the locus classicus case of Isiyaku Mohammed v. Kano Native Authority (1968) 1 All N.L.R. 42;
?a fair hearing involves a fair trial and a fair trial of a case consists of the whole hearing. We therefore, see no difference. The true test of fair hearing, it was suggested by counsel, is the impression of a reasonable person who was present at the trial, whether, from his observation justice has been done in the case.?
This test has been expanded to include that of a fair view of a dispassionate visitor to the Court who watched the entire proceedings from the beginning to the end or of an un officious by-stander or reasonable man who upon perusal of the record of proceedings would go away with the impression as to whether justice was done to the parties or not.
Paramountly, the attributes of fair hearing go beyond hearing both parties on all material issues and giving equal treatment and opportunity to both sides. It entails a consideration of the

case presented by each party to the dispute. It is not enough to afford parties a hearing or an opportunity of hearing. The Court must after hearing the parties, consider and evaluate the case as presented by each party on every material issue before arriving at its conclusion on the issue. It is only when all the attributes are present in the proceedings that the parties can be said to have been given a fair hearing. See Bamgboye Vs University of Ilorin (1999) 10 NWLR (pt 622) 290, Adeyemi Vs State (2014) LPELR – 23062(SC).
A hearing cannot be said to be fair if any of the parties is refused a hearing or is denied the opportunity to be heard or even after being heard, is denied a consideration of this case. See Mil. Gov. Imo State Vs Nwauwa (1997) 2 NWLR (Pt. 490) 679.
It is clear in the instant case that there was no proper evaluation of the two-affidavit evidence by the learned trial judge before arriving at the conclusion that the supporting affidavit meets the requirement of the law. There could not have been a proper evaluation of the affidavit evidence when the trial Court disregarded or failed to consider in its ruling the contents of the

counter-affidavit.
In ONISAODU AND ANOR VS ELEWUJU AND ANOR (2006) 13 N.W.L.R. (PT 998) 51, the Supreme Court held that:
“proper evaluation of evidence is absolutely important in determining a case and coming to a just conclusion. It is trite that the Learned Trial Judge must assess and appraise all evidence before him.”
The law has since been settled by a very long line of cases that failure of the Court to give a full consideration and determination to the case of a party, is a violation of the party?s right to fair hearing. In the instant case the none consideration of the appellant?s counter-affidavit in the determination of the application, amounted to a denial of fair hearing. It is a stampede of fair hearing.
Adamu, JCA (of blessed memory) in his contributory judgment in the case of SPDC Ltd. Vs Akpan & Ors (2014) LPELR – 23530 (CA) had this to say:
?I can only add as his Lordship Mohammed, JSC, did in Uzuda & Ors. v. Ebigah & Ors. (2009) LPELR 3458 (SC) 23 – 24 that where a Court fails to give full consideration and determination of the case of a party, it is a situation touching on the

violation of a parties right of fair hearing. The breach of a right of fair hearing goes to the root of the trial Court?s jurisdiction. It nullifies the entire proceedings in which the breach occurred leaving nothing for the appellate Court to decide. Deduwa v. Okorodudu (1976) 9-10 SC 310, Adigun v. Attorney-General, Oyo State (1987) 1 NWLR (Pt.53) 578. Failure of the trial Court to consider the issue amounted to a breach of fair hearing-Mogaji v Ajani (1989) 3 NWLR (Pt. 111) 511.?
See also Newswatch Communications Ltd. Vs Atta (2006) All NWLR (Pt. 34) 530.
The question therefore is not whether injustice has been done as a result of want of fair hearing but whether the party has been denied his right of fair hearing. Thus, a party like the Appellant in this appeal who establishes that his right to fair hearing has been breached needs not prove that he suffered a miscarriage of justice. A miscarriage of justice is inherent in the breach. In Mpama Vs FBN Plc (2013) LPELR – 19896 (SC), N.S. Ngwuta, JSC at page 32 paragraph E of the electronic law report observed inter alia:
?…contrary to the argument of learned Counsel for the

Respondent, the appellant who established a denial of his right to a fair hearing under the Constitution is not required to prove that he suffered a miscarriage of justice. A miscarriage of justice is inherent in a denial of a right to a fair hearing.”
Once the Appellate Court comes to the conclusion that there had been a breach of fair hearing, the decision reached must be set aside. This trite position of the law was restated in Alh. Muhammadu Maigari Dingyadi & Anor. Vs INEC & Ors that any decision of a Court arrived at in violation of the fundamental rights of fair hearing of a party against whom it is made cannot be a valid decision and should be declared a nullity.
Accordingly, the decision of the lower Court having been reached in violation of the appellant?s right to fair hearing cannot stand. It is hereby declared a nullity. The result is that the sole issue is resolved in favour of the Appellant without the necessity to proceed further. The appeal being meritorious, succeeds and is allowed.
?
However, the appropriate order to make in the circumstance is to remit the matter to the Hon. Chief Judge of Kebbi State to be

reassigned to another judge to hear the application for enlargement of time within which the respondent herein, may appeal the judgment of the Upper Sharia Court, Kamba delivered on 19/3/2015 in Suit No. CV/AP/NO/06/2014.

AHMAD OLAREWAJU BELGORE, J.C.A.: I had the privilege of reading before now the judgment just delivered by my learned brother, AMINA AUDI WAMBAI, JCA. I agree with the reasoning and conclusion reached therein.

I also allow the appeal and abide by the consequential orders contained in the lead judgment.

FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Judgment of my learned Brother AMINA AUDI WAMBAI, JCA just delivered and I am in agreement with his reasoning and conclusions in allowing the Appeal as meritorious. I abide by the consequential orders made by Court.

Appearances:

M. A. Sambo with him, M. U. Uwais
For Appellant(s)

Lagalo Dan LagaloFor Respondent(s)

Appearances

M. A. Sambo with him, M. U. UwaisFor Appellant

AND

Lagalo Dan LagaloFor Respondent