BOGORO LOCAL GOVT COUNCIL v. KYAUTA & ORS
(2020)LCN/14337(CA)
In The Court Of Appeal
(JOS JUDICIAL DIVISION)
On Thursday, June 04, 2020
CA/J/34/2018
Before Our Lordships:
Tani Yusuf Hassan Justice of the Court of Appeal
Mudashiru Nasiru Oniyangi Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Between
BOGORO LOCAL GOVERNMENT COUNCIL APPELANT(S)
And
- JAMES KYAUTA 2. DINDAH YUSUF 3. KYAWA GARBA 4. LIMBAS B. YASSAN 5. TAMAR MAHAM 6. HALIMA YOHANNA 7. AFINIKI ZAKKA 8. YOHANNA IRIMAYA 9. RUTWA LUKKA 10. YABA ZUMUNTA 11. VICTORIA BAKO 12. KYAWA MICHEAL 13. YAWA MIKA 14. SARATU YOHANNA 15. RHODA SAMSON J. 16. ZAKARIYA DAJA 17. SARAYA ANDREW 18. MURNA ZAKKA 19. JAMILU SULE 20. KALLO MBAYAM 21. RHODA ISHAYA 22. ILIYA WASA 23. MAGAJI LEVI ILIYA 24. WORMI JOSEPH 25. DANIEL L. MAIMAKO 26. HANATU JOHN 27. DEBORAH ZAKARIYA 28. VASHI TUSUF 29. KEZIYA ZAKKA 30. ELIAS E. MANZO 31. SUZANA TOMA 32. JUMMAI HABILA 33. YUSUF HAKURI 34. MARYAMU TAFIDA 35. SALINA ILIYA 36. MURNA SABO 37. KYAUTA JOHN 38. LARABA GALADIMA 39. MICHEAL YAKI 40. ASABE AYUBA 41. CHARITY ANDARAULUS 42. HANNATU SOLOMON 43. ISHAYA ARZIKI 44. ESTHER DANIEL 45. HELEN DAUDA 46. MADALLA RUFAI 47. HAJARATU B. BUGUN 48. BRISKILA FILIBUS 49. FOLMI TULA 50. FRANCIS JOSEPH 51. POLUM ISHAYA 52. LAMI YUSUF 53. SARAYA DAKAM 54. HANNATU SIMAN 55. TALATU PHILIBUS 56. RHODA STEPHEN 57. GODIYA BITRUS 58. TOBA GAMBO 59. TALATU SULEIMAN 60. MONSHI ZAKARIYA 61. JAMIMAH ALI 62. TANIMU ISHAKU 63. MARTHA YAKUBU 64. NADIP TITUS 65. RHODA MORIYA 66. RAUTU LUKA 67. SARATU CHIMA 68. ALHERI BARNABAS 69. ROSE DANIEL 70. LAMI AYUBA 71. THERESA SULE 72. ISHAYA IBRAHIM 73. IBRAHIM ISHAYA 74. RIFKATU DAJI 75. JOHN J. MASOYINKA 76. ALHAMDU YAKUBU 77. ABIGAIL DARABO 78. POLINA BITRUS 79. CECELIA BARNABAS 80. BUCHONG GARBA 81. AFINIKI GARBA 82. RIFKATU ISHAYA 83. JOSEPH ISHAYA 84. KYAWA YAKI 85. ABIGAIL JAMES 86. S. ALISON ESTHER 87. ASABE DAUDA 88. CHONDAH ZAKKA 89. REUBEN ZAKARIYA 90. HAJARATU DAUDA 91. MARY YUSUF 92. GABA SOLOMON MAMMAN 93. ISTIFANUS MAKERI 94. SUZANA YOHANNA 95. JAMES JOHN K. 96. MARY NAMODA 97. DUNA GARBA 98. TAWAR DAWAKI 99. LYDIAN AMOS 100. LAMI YUSF BABAS 101. CHRISTIANA VICTOR 102. DAUDA ALI 103. ZABA GARBA 104. YAKUBU GARBA 105. HAKURI JOHN 106. SARATU MUSA 107. MADALLA HARUNA 108. WULLY CHONGKAM 109. VASHI JAMES 110. MATHEW ILIYA 111. TABITHA LUKSHI 112. YAWAINA YOHANNA 113. YAWAINA ISTIFANUS 114. SALAMATU YASAN 115. SARATU HARUNA 116. SARAY JOHN 117. AYUBA YOHANNA 118. ALTINE JOHN 119. MARTHAR DAVID 120. KANDE JOSHUA 121. RIFKATU ISHAKU D. 122. EZRA JOB 123. YALDAM JOHN 124. LAMI YOHANNA 125. ISTIFANUS DAUDA 126. KYAWA ZAKKA 127. ESTHER YUSUF 128. PIKO IDO 129. SILAS YAKUBU DAJA 130. GRACE NUHU 131. SARATU DANIEL L. 132. ESTHER DANLADI 133. SIMON DOGO 134. ILIYA ADAMU 135. MARYAMU YOHANNA 136. SUZANA JOHN 137. YAWA MAIDUKA 138. GODIYA GASHION 139. EMMANUEL ZAKKA 140. MARY DAUDA 141. VASHI MUGANA 142. MBANI NEHEMIAH 143. HARUNA TITUS 144. YELSHI JOSIA 145. NYARIM ISHAYA 146. SAMAILA MUSA 147. ALHERI YOHANNA 148. ALBARKA MICHEAL 149. WUMSHI JOHN 150. KYAWA HARUNA 151. DAUDA JIKA 152. YAKUBU BABA 153. ESTHER MALLAM 154. ESTHER KASAM 155. PAULUS MUSA 156. RHODA BAKO 157. ABIGAIL GODWIL 158. SUM SAMUEL 159. ISTIFANUS KUSHI 160. SAITA SUNDAY 161. RAHILA MAIKANO 162. ANDARAWUS YAKUBU 163. KU’ULFA ANTHONY 164. DINDAH HABILA 165. LAITU HARUNA 166. SHEBA IDI 167. MONDAY GABRIEL 168. ABIGAIL LUKA 169. RAHILA HARUNA 170. ESTHER GIDEON 171. KARATU GAMBO 172. NA’OMI ZAKKA FATE 173. SALAMATU YOHANNA 174. RAHAP TULA 175. POLINA MONDAY 176. SAMSON MAGAJI 177. ALAHAMDU JOSHUA 178. SURAJO MUSA 179. YALSHI ISHAYA 180. SULE HARUNA 181. LIDIYA NEHEMIAH 182. YELIM NUHU 183. LADI DARE 184. GODE ZAKKA 185. YAKA ZAKKA 186. BRISKILA JOHN 187. LARABA BULUS 188. MARY LUKA CHIKA 189. RHODA SOLOMON 190. KEZIAH RABO 191. MBANI GASHION 192. BOGORO MARKUS 193. ZAKARIAH YAKUBU 194. TABITHA SUNDAY 195. RIFKATU MAJI 196. ADAMU GARBA 197. RIFKATU NUMSHI 198. GAMBO AYUBA 199. RHODA HARUNA 200. DAUDA YOHANNA 201. ACCESS BANK PLC RESPONDENT(S)
RATIO
WHETHER OR NOT EVERY COURT IS DUTY BOUND TO HEAR AND RULE ON EVERY PROCESS OR APPLICATION BROUGHT BEFORE IT
The law is now well settled that except in an exceptional situation like the one in Ogunseinde v. Societe Generale Bank Ltd (2018) 9 NWLR (PT. 1624) 230 where the application in issue for leave to appeal to the Supreme Court was brought to this Court when the period fixed by statute for appealing and asking for leave had lapsed and so this Court did not even possess the jurisdiction to entertain that said application, every Court is duty bound to hear and rule on every process or application brought before it no matter how frivolous, unmeritorious or even downright stupid such application may be and refusal to do that amounts to denial of fair hearing. That much has been made very plain in several cases including Mobil Producing Nig. Unlimited v. Monokpo (2004) ALL FWLR (PT 195) 575 and more recently in Odedo v. Oguebego (2015) 13 NWLR (PT. 1476) 229 @ 251-257 (SC). PER UGO, J.C.A.
WHETHER OR NOT BREACH OF THE RGHT TO FAIR HEARING DENIES THE COURT OF JURISDICTION
Breach of right of fair hearing denies the Court of jurisdiction and nullifies any proceedings conducted subsequent to such breach; it is no answer that the same result would have been reached even in the absence of the breach: SeeSalu v. Egeibon (1994) 6 NWLR (PT 348) 23 @ 44 (SC). Citec International Estates Ltd v. Francis (2014) 8 NWLR (PT 1408) 139 @ 163 (SC), Ahmed v. Ahmed (2013) ALL FWLR (PT. 699) 1025 @ 1070 (SC); Oyeyemi v. Commissioner (1992) 1 NSCC 371 @ 384 (SC). PER UGO, J.C.A.
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal questions the correctness of the decision of the National Industrial Court of Nigeria (NICN) of 22/06/2017 making a garnishee order absolute despite the pendency of an application by appellant, as judgment debtor, to set aside the earlier garnishee order nisi of the Court attaching the funds of appellants with Fidelity Bank, one of the garnishees in the proceeding.
The facts leading to the appeal are that sometime on the 18th May, 2017, the respondents filed an ex-parte application against appellant before the National Industrial Court of Nigeria (NICN), Jos Division for a Garnishee Order Nisi attaching all the monies due or accruing in the Judgment Debtor’s Account (s) with some Garnishee Banks, including 5th Garnishee, Fidelity Bank Plc, to satisfy its Judgment Debt against appellant in Suit No NICN/JOS/47/2014 of 13th day of July, 2016 in the sum of N84, 350, 000 (Eighty Four Million, Three Hundred And Fifty Thousand Naira) plus 10% Per Annum interest from 14th August, 2016.
The said ex-parte application was heard and granted on the 1st day of June, 2017.
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Appellant, on receipt of the order nisi which Section 83(2) of the Sheriffs and Civil Process Act requires that it be served on him not later than 14 days before the hearing of the application to make the Garnishee Order Absolute, filed an application on 13/06/2017 for an order setting aside the said order nisi on the ground that it was obtained on the basis of misrepresentations by the respondents. It also alleged that the said funds that were attached by the garnishee order nisi belonged to all twenty Local Government Councils of Bauchi State.
The said twenty Local Government Councils of Bauchi State also filed a similar application on 16/6/2017 on the same grounds that the said account with Fidelity Bank Plc attached in satisfaction of respondents’ judgment against appellant is a joint account maintained by all Local Government Councils of Bauchi State jointly and so it ought not to be attached pursuant to a judgment obtained only against appellant by respondents.
The respondents as judgment creditors and applicants countered the said applications with counter affidavits. Both applications came up for hearing on the 22nd day of June,
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2017, but appellant, having been served respondents’ counter-affidavit only on the same 22nd day of June, 2017, applied for a date to respond, and the matter was adjourned to 28th day of June, 2017 for hearing of its application.
In a rather complex twist, however, the trial judge, who had adjourned the same applications, went ahead again on the same 22nd June, 2017 and made the garnishee order nisi absolute in favour of respondents in spite of the applications challenging the order nisi and the funds of appellant with 1st and 5th garnishees were attached without hearing its pending application or even that of the other Local Governments Councils to set aside the said interim order of attachment.
Dissatisfied, appellant has brought this appeal and framed the following single issue for determination:
Whether the Trial Court NICN had jurisdiction to grant the garnishee order absolute in view of its pending application to set aside the order nisi, and whether it was given fair hearing after its application to set aside the order nisi was not heard and determined before the order absolute was granted by the trial Court.
It argues that the
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trial National Industrial Court of Nigeria lacked jurisdiction to make the garnishee order absolute while its application for setting aside the order nisi was pending and had even been adjourned by the same Court to 28/6/2017 and was never determined by the Court before making the said final order of the Court attaching its funds. The order absolute of the Court, it complains, is pre-emptive of its application and amounted to infringement of its right to fair hearing as the Court is duty bound to decide all issues submitted to it. Denial of right to fair hearing nullifies the proceeding and it is irrelevant that the same result would have been reached if there was no breach, it argued, and finally urged us to allow the appeal, set aside the said garnishee order absolute and remit the case to the Lower Court for determination of all pending applications.
The respondents’ first response was to object preliminarily to the competence of the appeal itself. The thrust of their argument in the objection, which they also repeated against the merits of the appeal, is that garnishee proceeding is a special proceeding; that notwithstanding that appellant as
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judgment debtor is mandatorily required by Section 83(1) of the Sheriffs and Civil Process Act to be made party to such proceeding, he is only a nominal party to it as a garnishee proceeding is in reality only between the judgment creditor/applicant and the garnishee who is indebted to the judgment debtor; that it is only the garnishee that is invited by the Court in garnishee proceeding to show reason why the order nisi for attachment should not be made absolute; that even where the judgment debtor is in Court he can only be seen and not heard; that appellant being a judgment debtor cannot even validly file the motion it filed to set aside the order nisi of the Court.
For the same reasons, it was further submitted that appellant cannot even validly exercise a right of appeal as it did; that it can only appeal, as an interested party to the proceeding under Section 243(1)(a) of the 1999 Constitution of this country upon leave of the Court and since that leave was not obtained, this appeal is also incompetent.
In support of these submissions, respondents through their counsel Chief G.M. Kuttu cited U.B.A. v. Ekanem (2010) 6 NWLR (PT. 1190) 207 @ 220,
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Nigerian Maritime Administration and Safety Agency v. Odey (2012) 52 WRN 108; WEMA Bank v. Brastem -Sterr (Nig) Ltd (2010) 6 NWLR (PT. 1242) 58 @ 76 all of this Court. Counsel also cited in support of his argument dictum of the Supreme Court in C.B.N. v. Interstella Communications Ltd (2018) 7 NWLR (PT. 1618) 294 @ 339 even as the said dicta there was clearly made obiter as the battle in C.B.N. v. Interstella Communications Ltd was between the garnishee, C.B.N., and the judgment creditor/applicant, Interstella Communications Ltd and no issue of a judgment debtor’s right to be heard in a garnishee hearing arose before the Supreme Court.
Assuming this Court find no merit in their objection, they formulated a single issue on the merits of the appeal thus:
Whether it is in all situations that a breach of right to fair hearing will occur when a Court fails or refuses to hear an application, or whether it will only occur in a case where a party has a right to be heard in Court but was denied it.
They answered this question in the negative and called in aid the Supreme Court’s decision in Ogunseinde v. Societe Generale Bank Ltd (2018) 9 NWLR
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(PT. 1624) 230 @ 141 where the Apex Court decided that this Court’s decision not to decide an application for leave to the appeal to it (Supreme Court) filed after expiration of the time for appeal did not amount to breach of applicant’s right to fair hearing. They submitted that appellant being only a judgment debtor, and not a party to the application before the Lower Court, the failure of the Lower Court in hearing its pending application before making the garnishee order absolute cannot be said to have infringed its right to fair hearing as that application was in reality an ex parte application as far as appellant was concerned and so could not have been granted even if a motion or stay of execution was pending. They cited this Court’s decision in Denton-West v. Chief Muoma (2008) 6 NWLR (PT. 1083) 418 @ 442 (CA) for that proposition. The decision of the Lower Court, it was further argued by them, was made and directed only against the garnishees and not appellant so a right of appeal cannot be properly exercised by appellant unless he applies to do so as an interested party. They concluded by asking us to find no merit in the appeal and dismiss it.
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Replying on points of law, Mr. Tsuwa on behalf of the appellant argued that a judgment debtor is not by any means a mere nominal party but a necessary party who Section 83 of the Sheriffs and Civil Process Act also requires that should be served the garnishee application at least 14 days before its hearing. Citing a number of decisions including Fidelity Bank Plc v. Okwuowulu (2012) LPELR-8497 (CA) and Sokoto State Government v. Kamdex Nig Ltd (2004) NWLR (PT 878) 345 @ 380, counsel argued that a garnishee application is in two stages: the first stage being the ex parte stage for grant of order nisi of attachment. At that stage, he conceded, the judgment debtor could be rightly said to be a nominal party. The second stage which is to make the order absolute, he submitted, is a tripartite stage and envisages the involvement of three parties – the judgment creditor, the judgment debtor and the garnishee. On these grounds, counsel urged us to dismiss the preliminary objection of respondents.
In respect of the main appeal, he argued that appellant had a right of appeal since it was a party to the garnishee proceeding and was even served as a
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party to the proceeding as required by Law. He pointed out that non-service of the processes as required by Section 83 of the Sheriffs and Civil Process Act would have even robbed the Lower Court of jurisdiction; that the essence of that service was to enable appellant react to the case and particularly the order nisi. Counsel submitted that Ogunseinde v. Societe Generale Bank Ltd cited by respondents’ counsel is distinguishable and inapplicable as the application in that case, which the Apex Court held did not amount to breach of appellant’s right to fair hearing, was for leave to appeal to the Supreme Court and was filed after the time to seek leave had lapsed and so could only have been brought in the Supreme Court.
Resolution of issues
There is no doubt that, the argument of respondent that appellant being a judgment debtor is not a party to garnishee proceeding and so lacks right to be heard on its application and even this appeal is incompetent for that same reason are the same issues they raised in response to the merits of the appeal. One is therefore tempted to take the preliminary objection along with the arguments in the main
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appeal. I shall nevertheless try to take them separately lest this Court be also accused of denial of fair hearing.
Preliminary objection: The Respondents’ argument in its preliminary objection is that a judgment debtor, despite Section 83 (2) of the Sheriffs and Civil Process Act making service of Garnishee proceeding on him, is a mere nominal party and so the Court can ignore his presence and whatever he may file. They rested this argument on the decisions of this Court in the cases of U.B.A. v. Ekanem (2010) 6 NWLR (PT. 1190) 207 @ 220; Nigerian Maritime Administration and Safety Agency v. Odey (2012) 52 WRN 108; WEMA Bank v. Brastem-Sterr (Nig) Ltd (2010) 6 NWLR (PT. 1242) 58 @ 76.
Against those decisions are the decisions of this same Court in Fidelity Bank Plc v. Okwuowulu (2012) LPELR-8497 (CA) and Sokoto State Government v. Kamdex Nig Ltd (2004) NWLR (PT 878) 345 @ 380 and N.A.O.C. v. Ogini (2011) 2 NWLR (PT 1230) 131@ 152-153 to the effect that a garnishee proceeding is in two stages: first the ex parte stage when it is simply between the judgment creditor/applicant and the Court, and then the second stage which is a tripartite one
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involving (1) the judgment creditor/applicant, (2) the garnishee who is called upon to show cause why he should not be ordered to pay over his indebtedness to the judgment debtor to the judgment creditor/applicant, and (3) the judgment debtor who Section 83 of the Sheriff and Civil Process Act requires be served the application at least 14 days before the hearing of the garnishee application – that the judgment debtor is not by any means just a mere nominal party but a necessary party who has a right to be heard in this tripartite stage.
Fortunately, this Court, recognizing the conflict in its decisions above, invited an array of respected senior counsel as amicus curiae to address it on this issue in Nigerian Breweries Plc v. Dumuje (2016) 8 NWLR (pt. 1515) 534. In that case, like this one, the learned trial judge in his ruling on the garnishee order absolute that was appealed by the judgment debtor did not consider the merit of the case put forward by the judgment debtor, he being of the opinion, like the trial judge and respondents here, that a judgment debtor is an interloper in a garnishee proceedings because such proceedings are not the same as the
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proceedings where the judgment debt emanated and the judgment debtor was not a party to it. There, this Court (Ogunwumiju, J.C.A., with our brothers Barka and Ogakwu, JJ.C.A, concurring) resolved the issue as follows:
“I am of the firm view that after the service of the order nisi on him, the Judgment Debtor may convince the Court by way of affidavit to discharge the order nisi, for instance, where it is proved that the judgment leading to garnishee proceedings, was obtained by fraud, non-service of the originating process of the main suit or any other vitiating factor based on which the trial Court has the power to set aside its own judgment or even payment or liquidation of the judgment of the judgment sum which is being sought to be realized by way of enforcement where the Court refuses to discharge the order nisi and make the order nisi absolute, the Judgment Debtor, being a necessary party, can appeal as of right since the order absolute is regarded as a final decision of the Court: See U.B.N Plc V. Boney Marcus Ind. Ltd. (2005) 13 NWLR (Pt. 943) 654 at 665 paras. A-C.
“…
“The emphasis here is the fairness of the
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judicial process. The right to fair hearing enshrined in S. 36 of the 1999 Constitution only connotes that a party should be given the opportunity to be heard whether or not a party’s submission is accepted is entirely the Court’s prerogative. The service of the order nisi and all accompanying processes on the judgment debtor is not a matter justifying righteousness. In my humble but strong view, it is a mandatory provision without which any subsequent judicial action would be rendered a nullity.
“In my humble view, the Judgment Debtor who is the owner of the money in possession of the Garnishee has a right to be heard if he wishes before the garnishee order is made absolute. I am also of the strong but humble view that his right to be heard should be at large. If not a Pandora’s box would be opened to enable the Judgment Debtor engage in all manner of activities that can abort the process and or make nonsense of the raison d’etre of the provisions and rules of Court in garnishee proceedings enacted for the express purpose of oiling the wheels of execution of liquidated money judgment. Therefore, it is my own humble
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conclusion that a Judgment Debtor is free to challenge the order nisi before the Court that made the order and to urge the Court to set it aside by and for any of the following reasons:
1. File an application to the same Court to set aside the order nisi for want of jurisdiction where the computation of the money sought to be recovered had been done unilaterally and not based on a specific order of Court. In other words, when the actual total Judgment Debt is being challenged. This is because a garnishee order can only be made upon a sum certain – liquidated amount which cannot be varied. See Major Awoyomi V. Chief of Army Staff & Ors. (2013) 4 BFLR 31, Nigeria Customs Service V. Abileowo Investment Ltd. & Anor. (2014) 1 BFLR 263.
2. File a motion to vacate the order nisi supported by an affidavit to show the Court that there had been partial execution of the judgment or that part of the Judgment Debt had been paid and the process filed by the garnishor are not factually correct.
3. File a motion supported by affidavit to show that proper parties were not before the Court.
4. File an affidavit supported by exhibits that there
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is a motion for stay of execution of the judgment before an Appellate Court and an appeal had been lodged by the judgment debtor against the said Judgment or ruling.
“The choices opened to counsel are not exhaustive and would depend on the circumstances of each case. However, it is not open to counsel to challenge the merit of the judgment during garnishee proceedings in any guise. The judgment debtor must keep his gunpowder dry to fire his gun during the course of the substantive appeal or any form of review he has chosen. If after hearing the three parties – judgment creditor, judgment debtor and garnishee in the proceedings the Trial Court decides to make the order nisi, Absolute, or to discharge or vacate same, any of the parties have a right of appeal against that decision.”
This undoubtedly sound exposition of the law has been followed by subsequent decisions of this Court including Delta State Government v. Kay Que Investment Ltd & Anor (2018) LPELR- 45545 (CA) and Stanbic IBTC Bank Plc v. Long Term Global Capital Ltd & Ors, Unreported Appeal No. CA/L/254A/2011.
I shall only add, in addition, that it even appears
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to me preposterous and in fact borders on the absurd to suggest as is done by respondents here that all that the Lawmaker intended when he made it mandatory in Section 83(2) of the Sheriffs and Civil Process Act that a judgment debtor in a garnishee proceeding shall not only be served but served “at least fourteen days before the hearing a copy of the order nisi” is to simply make him a spectator at the hearing and the minimum 14 days’ requirement is simply to enable him horn, so to speak, his spectating skills; that he is not supposed to speak, even if the judgment creditor is to his knowledge suppressing or misrepresenting facts in the proceeding and that that disability extends to even his right of appeal. Courts do not adopt an interpretation of a statute that is absurd, especially where there is another possible interpretation: See Maxwell on The Interpretation of Statutes, 12th Edition by P. St. Langan, P. 210; Ndoma -Egba v. Chukwuogor (2004) 2 S.C. (PT 1) 107 @ 114-115.
In conclusion, I find the preliminary objection of respondents misconceived and here overrule it.
That also settles to a great extent the merits of the
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appeal. Appellant’s right to fair hearing was breached by the Lower Court when it ignored its application to set aside the garnishee order nisi which the same Court had even earlier adjourned. The law is now well settled that except in an exceptional situation like the one in Ogunseinde v. Societe Generale Bank Ltd (2018) 9 NWLR (PT. 1624) 230 where the application in issue for leave to appeal to the Supreme Court was brought to this Court when the period fixed by statute for appealing and asking for leave had lapsed and so this Court did not even possess the jurisdiction to entertain that said application, every Court is duty bound to hear and rule on every process or application brought before it no matter how frivolous, unmeritorious or even downright stupid such application may be and refusal to do that amounts to denial of fair hearing. That much has been made very plain in several cases including Mobil Producing Nig. Unlimited v. Monokpo (2004) ALL FWLR (PT 195) 575 and more recently in Odedo v. Oguebego (2015) 13 NWLR (PT. 1476) 229 @ 251-257 (SC).
In summary, it is beyond disputation that the Trial Court by ignoring the pending motion of
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appellant to set aside its earlier order nisi and going ahead to make absolute its order nisi breached appellant’s right to fair hearing.
Breach of right of fair hearing denies the Court of jurisdiction and nullifies any proceedings conducted subsequent to such breach; it is no answer that the same result would have been reached even in the absence of the breach: SeeSalu v. Egeibon (1994) 6 NWLR (PT 348) 23 @ 44 (SC). Citec International Estates Ltd v. Francis (2014) 8 NWLR (PT 1408) 139 @ 163 (SC), Ahmed v. Ahmed (2013) ALL FWLR (PT. 699) 1025 @ 1070 (SC); Oyeyemi v. Commissioner (1992) 1 NSCC 371 @ 384 (SC).
The sum total of all the foregoing is that this appeal is meritorious and is allowed and the decision of the Lower Court including its judgment is here set aside.
It is further ordered, consequentially, that respondent’s garnishee application on notice together with all other pending applications before the Lower Court shall be heard afresh by another judge of the National Industrial Court of Nigeria.
Cost of the appeal is assessed at N100,000.00 in favour of appellant.
TANI YUSUF HASSAN, J.C.A.: I read in draft
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the lead judgment of my learned brother, BOLOUKUROMO MOSES UGO, JCA. My brother has properly dealt with the issue in this appeal. I have nothing useful to add. I agree that the appeal be allowed and it is also allowed by me.
I abide by the order as to costs.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had the advantage of reading before now the judgment just delivered by my learned brother BOLOUKUROMO MOSES UGO, JCA.
I am in complete agreement with the reasoning and conclusion arrived thereat that the appeal is meritorious and should be allowed.
I also allow the appeal and abide by the consequential orders therein contained in the lead judgment.
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Appearances:
J.T. Kuleve Esq. For Appellant(s)
Chief G.M. Kuttu, with him, B.N. Jattau Esq. and S.E. Dawam Esq. For Respondent(s)
